SN: YA, we have so far interviewed 19 witnesses. There are yet 6 witnesses that are made available. YA, I think the prosecution requires time to make available the other 6 witnesses. We have been told that those 6 witnesses can be made available this week. We have also indicated to the prosecution all the witnesses that we are going to call. I believe my learned friend is agreeable per what we discuss.

MY: The defence has given me the list of witnesses and I confirmed that we have discuss and both parties agree that we shall start next Monday.

YA: Defence confirmed Monday will start the defence, on 22nd August. Prosecution, make the arrangement and defence will start your defence on Monday whatever the outcome of the interview.

KS: Memperkenalkan barisan Peguambela dan Pendakwa Raya
YA: Kita ada 2 permohonan hari ini, kalau pihak-pihak tiada bantahan, kita dengar 2 sekali. Isu yang sama kan?
KS: Isu yang sama YA.
YA: So kita dengar sekali, ok? Setuju?
KS: Ya, YA.
KS: My Lord, there are two motions before your Lordship. First 197, the other is 204. There was an affidavit in reply to the application 197. I take your Lordship to Para 11 of the affidavit MH. Para 11 adverts to this.
“Selanjutnya saya mengatakan pemohon melalui peguambelanya S.N Nair memaklumkan kepada Sarjan Ahmad bin Abdullah pada 25 Mei 2011 dan kemudian disahkan sekali lagi pada 26 Mei 2011, yang saksi-saksi yang dinyatakan di bawah ini tidak diperlukan untuk ditemubual oleh pihak pemohon.”
Then it is followed by the name of 8 witnesses My Lord. There is no affidavit by Sarjan Ahmad. The affidavit is only by Encik Hanafiah. Clearly this part of the affidavit would be inadmissible. It has been said that when we look at the midst of the matter, we are asking for witnesses in 197, 5 witnesses that has been set out in the motion: 1) Haji Hasanuddin 2) Dato Mohd Rodwan, 3) Tan Sri Musa Hassan 4) YB Dato’ Seri Najib Razak 5) Datin Seri Rosmah Mansur.
And the second motion we have the list of 15 witnesses we wish to produce in court. Second, we wish to be given the right to interview them. The names appear in the list of witnesses offered to us. Below the subject, in the Criminal Procedure Code or elsewhere, with the regard to offering of the witnesses at the close of the case of the prosecution. This has been a practice for a long time, and a practice which is taken for the significance of the law.
I take your Lordship to tab number 8, first case in 1932, the case of C. Sanmugam. I take you to what is the relevance and significance issue there. It is the judgment of J. Whiteley about the contention of the Solicitor General. We go on to what the judge had said.
YA: Hold on. Page 75, which para?
KS: The right hand column, below there. I’ve highlighted that.
“In a trial by the Jury the prosecuting officer is not bound to call as a witness for the crown or tender for cross-examination a witness who gave evidence in the preliminary inquiry whose evidence in his opinion is unnecessary, hostile or not believed. But such witness must be in attendance. If the accused or his counsel wishes to have such witness called not called by the Crown, then the witness becomes his witness and the prosecuting officer will have the right of cross-examination.”
That case adverted to trial by jury and the position in matter involved in the inquiry.
I take you to what had decided in the case of Teh Lee Tong v Rex [1956] 22 MLJ, tab 7 of the list. This is important.
In this case the learned Judge considered the question whether it is incumbent on the prosecution in a summary trial to call as witnesses all persons from whom statements have been taken. He summarised the position as follows:
(1) All witnesses from whom statements have been taken should be brought to the Court by the prosecution, except those whose evidence will clearly and obviously throw no light on the case; any witness not so brought to Court must be made available to the accused, should he desire to call him.
(2) Having brought the witnesses to Court the prosecuting officer is not bound to call or to offer for cross-examination a witness whose evidence is in his opinion unnecessary or is obviously hostile.
(3) The existence of witnesses brought to Court but not called or offered for cross-examination under (2) above must be brought to the attention of the Court so that they are available to be called by the defence, or by the Court should the Court consider this necessary.
So what is important My Lord is the first paragraph; it should be brought to the court by the prosecution. None of these witnesses has been called to the court. Then it arises what happened when the witnesses is offered to the defence.
I take you to tab 9, the case of Wong Kue v Public Prosecutor [1967] 2MLJ 97:
“The defence has every right to interview police witnesses offered to the defence and the defence should be given a reasonable time for this purpose. A period of 15 minutes to interview six witnesses as in this case, is certainly not reasonable especially when a request for more time was made at the end of the period. Failure to give a reasonable time for the defence to interview these witnesses amounts to a gross injustice.”
It is our submission that none of these witnesses has been brought to court for the purpose of being offered to the defence. What we have now is the affidavit filed by Encik Hanafiah and that is to the effect that these witnesses are not compelled to the court, but only compelled to do so upon being subpoena.
I take you, with regard to the second exhibit, in the application of DSAI, application 197. That is a letter from the prosecuting officer, one of the Investigating Officer in this case, dated 18th of July 2011. It set out in Para 3, 5 witnesses who were in fact made available. It is in reply to our contention that these witnesses be interviewed to the court. Be that as it may, there was an understanding in chambers, in fact that was accepted by the prosecution that they will be brought to court. There is a situation perhaps it is not a protocol yet, but subsequently, they were for the purpose of 5 witnesses accepted for the purpose of being interviewed brought to court. And that we have here, in the letter itself, that some of the witnesses are not prepared for the purpose of being interviewed. In particular I will take you to para 6:
“Seterusnya saksi-saksi berikut tidak mahu ditemubual tetapi akan hadir ke Mahkamah jika disubpoena”.
In another words, some of the witnesses are refused to come to court pursuant to the understanding that they will be available to be interviewed here. For the witnesses to say now after they have been offered, that they are being subpoena, in fact in our view, are amounts to contempt of court. They have been offered to the defence, and the defence had been accepted them for the purpose of being interviewed, and their refusal would amounts to contempt.
The assertion that they must be subpoena, and that was the central [] in the reply by my learned friend to subpoena this witness. Some of them had indicated that they don’t want to come. That is the difference if the witnesses being subpoena, than the witnesses have been offered to the defence. When it comes to subpoena, I take your Lordship to the normal format of it in the Criminal Procedure Code that is in the Form 31. The second part of it, my Lord. [Read]. The word ‘testify’ would imply without the right to be interviewed, that not be include the right to be interview the witness. The rationale in offering witnesses to the defence, a witness from whom the statement has been taken, is to ensure that the witnesses are in the court for the purpose of the interview. They can’t say they don’t want to be interviewed. They can’t deny that position. And this has been done all the time My Lord.
And this is the procedure that, as I said earlier as the force of law, DSAI is entitled to a fair trial, and in the report is the case of Lee Kwan Who v PP [2009] 5 MLJ 301. I take your Lordship to page 303.
“The expression law in Art 5(1) of the Constitution included written law and the common law of England, i.e. the rule of law and all its integral components and in both its procedural and substantive dimensions. Thus it is settled law that the rule of law has both procedural and substantive dimensions”.
It is wrong for the Prime Minister to insist him to be subpoena, together with the other 4 witnesses who require the subpoena before the main trial. And for the other witnesses to say that they don’t want to be interviewed. They first must be interviewed. The must come for the purpose of being interviewed. They can’t by way of affidavit express that intention. They have to face defence counsel for the purpose of being interviewed. They can decline to answer question. They can incline []. But the defence couldn’t be denied the right had been denied the right, the right to these witnesses to be produced for the purpose of interviewed.
And this particularly important My Lord because all the witnesses from whom the statement is taken. The law is very clear. They must under the law be brought to court. The defence has every right to interview them, based on the two authorities I cited. The position is as simple as that. It has been done centuries ago since British had landed in Penang. I can’t see the difficulties why the Prime Minister has been so stubborn with another three witnesses who want to be subpoena, and the rest who don’t want to come, and also the one who insisting that he wants to come only with his lawyer: Encik Hasanuddin. We have no objection if he wants to come with his lawyer. Fair enough, he can come. But he must come. He cannot take shelter in the affidavit sworn. It is a very dangerous precedent set by your Lordship if your Lordship not allowing our application this time. This is not a threat but a gentle reminder to your Lordship of the consequences that should fall in the system. As far as this is concern, the precedent set put by your Lordship will bind them. And such situation ought not and cannot be allow to come about. Your Lordship duty is to hold the law. A law which has been there all the time. The law in which has been implemented in this court.
It would not be any departure from the law. Any departure from it would be amount to unconstitutional conduct. What is important is this my Lord, the alibi witnesses would come to court at any time, in fact even on the day of the hearing itself to give the evidence. And then the introduction of Section 402A of Criminal Procedure Code. This is now an opportunity for the list of alibi witnesses to be given to the prosecution, if the defence is intended to use alibi as their defence.
The rationale was this, for the prosecution to verify the truth of what the alibi witnesses are going to say i.e. being interviewed. And that interviewed is as result of Sec 112 of Criminal Procedure Code. 112 provides for a witness to say the truth, unless it came under the proviso. Otherwise, what had been stated is the truth. If the argument of opportunity to interview, in our case, alibi witnesses, we have opportunity to know from them what they have told the police in the 112 statement. And the alibi must be investigates is a trite law. I take you to the case of Lee Kwan Woh. It is at page 316 para 31 to the effect that the police must investigate the alibi.
How we will know what that they have said and we have the right to know from the witnesses, in the course of the investigation on what did you said in your statement to the police? So it must put in the perspective on whether or not to call the witness in the course of the defence. Can we be denied the opportunity to know that? Or from other aspect to know from this witnesses if they have been threatened by the police for the course of verification of the alibi. Can we be denied this? It is not the simple thing by saying that you subpoena the witnesses. And in this case, the alibi witnesses were offered by the prosecution, which ordinarily they need not be. What the police do is take the 112 statement and in the event of they getting evidence, and if they get something otherwise lose the 112 statement for the purpose of impeaching them.
YA: But in this case they had offered?
KS: In this case they had converted to prosecution witnesses and then offered to us. I don’t know why my learned friend is so []. What the intention is, I don’t know. That is not the point. We want [] which appears to be lacking in this case. So the position is as simple as that My Lord. I can’t understand why we are refused something which is so trite and simple. That is it.
YA: Kalau takde dah, I’ll hear from the prosecution.
KS: That is it all, My Lord. That is what it is.
YA: Ok, prosecution.
MY: YA, I would conceit, number 1: that the defence has the right to interview the witnesses. Number 2: that at the close of the prosecution case, the prosecution need to offer or has to be made available from whom the statement is recorded, including the alibi witnesses. Whether or not those phrases ‘to offer and be made available’ can be translated to have them produce physically or does it mean that it is an imply undertaking by the prosecution the case that you need to call those witnesses offered or made available as defence witnesses, then it would be the prosecution’s obligation to have subpoena applied and issued and serve on those witnesses whom they want to call as witnesses.
My lord, [] said, foundation of justice is good faith. Now where is the good faith in this application? First of all, most of the witnesses, my learned friend referred to para 11 Mohd Hanafiah’s affidavit, but what I want to say is this, there was a letter written by the IO to the defence counsel and it was exhibited in their own application as ‘DSAI 2’, which was copied to us.
If I may refer you to para 4 of this letter which was referred to and annexed to the affidavit of DSAI. It says that he following witnesses A to H and later on, most of the names were mentioned in the second application, it was the defence who want to [] with their interview. And then with regard to the PM and wife, Tan Sri Musa and Rodhwan, it is Encik Hanafiah’s reply where it stated that they couldn’t have anything material to testify for the purpose of this trial, with regard to the particular charge made against DSAI. If I may refer to paragraph 21 in enclosure 4 of the first Usul, if I may read as to what Hanafiah’s says:
“Selanjutnya saya menyatakan dakwaan pihak pemohon, yang mengatakan pemohon telah dinafikan peluang untuk perbicaraan yang adil jika saksi-saksi yang dirujuk di perenggan-perenggan 7 dan 8 Affidavit Pemohon tidak diwajibkan hadir untuk ditemubual oleh pihak pemohon tidak mempunyai asas kerana pihak pemohon sendiri telah mengatakan keterangan-keterangan keempat-empat saksi yang dinyatakan dalam perenggan 7 Affidavit Pemohon tidak relevan, memudaratkan dan tidak boleh diterima sebagai keterangan. Kenyataan saya ini disokong oleh penghujahan pihak pemohon sendiri yang mana saya lampirkan sebagai eksibit dan ditanda ‘MHZ-1’ di mana:
21.1 pihak pemohon telah berhujah bahawa semua keterangan SP1 berhubung pengaduan yang dibuatnya kepada Perdana Menteri Dato Seri Najib Tun Razak pada 24 Jun 2008 antara jam 8.00-8.30 pm di kediamannya di Taman Duta tidak boleh diterima masuk;

21.3 pihak pemohon telah berhujah menggesa Mahkamah mengenepikan keterangan berhubung perbualan telefon antara SP1 dengan Tan Sri Musa bin Hassan atas alasan sama.”
Obviously the evidence with relation to the incident similar but past incident and my learned friend had after having all those evidence being adduced by complainant admitted at the close of the prosecution’s case that all these witnesses highly prejudicial, and not relevant to the charge and therefore not admissible. Now, the law said this. Form 31 talks about a witness who have been subpoena, who can give material evidences. The defence themselves with regard to those witnesses, saying that they are highly irrelevant and prejudicial, and it referred to something which is not covered under the charge. It is not something which is referred to the incident happened on 26th.
Anything other than those incident would be highly prejudicial, we agreed. So why now you want to interviewed them, because you said that what the complainant told Najib, Musa and Rodwan are inadmissible, but now you want to call them. Because those are the only area that Saiful was cross examined with regard to the role of Najib, Musa and Rodwan.
Now with regard to those witnesses mentioned in second application. YA, with regard to the second application where 10 witnesses were mentioned, most of the names mentioned in MHZ-3 in their own notice of alibi. So when the defence put up the notice of alibi, for the police interview them to verify what is the material evidence that those witnesses could give. We give the notice of alibi to say that we weren’t there, but we were alleged to be where the offence took place. And these are the witnesses who can testify to them. Obviously they knew before hand but they wouldn’t want to submit those witnesses for the police to be interviewed. They are their witnesses. So what is there to interviewed? Because in this list, we have the name of the bodyguard and all those people who attended the meeting on the date of incident.
And the two maids of En. Hasanudin, at no time of the close of the prosecution case that we made available in the 71 witnesses until this application on the 1st of August 2011 the defence has never indicated they want to interview this two witnesses including Abdullah Sani bin Said.

So where is the good faith? Only two or three days ago. It was never indicated to us that they want to interview these people. And now they are saying “I have the right”. Yes, you have the right.

YA, before I go to the case law with regard to your right to interview may I just refer to the authority that my learned friend has referred. The first case, case no.8 is Shanmugam. The relevant paragraph start from the right hand column from the second paragraph until the last paragraph. What this case says is this, if you have called the witnesses during preliminary enquiry then you must made them available by producing them in the court whether called or not. You must produce them in court.

It said,
“…by a trial by jury, the prosecuting officer is not bound to call as a witness for the Crown or tender for cross-examination a witness who gave evidence in the preliminary enquiry whose evidence in his opinion is unnecessary, hostile or not believe but such witness must be in attendance.”

So it refers to witnesses who had their deposition recorded in the permittal proceeding.

In the case of Teh Lee Tong v. Rex [1956] 22 MLJ 94, my learned friend referred to this case as authority to say that we must produce. Can I start with the first sentence, the headnotes?

“The fact that a witness is really a defence witness is a sufficient reason for not tendering him for cross-examination.”

What all the case law seems to say is this, at the end of the day you must tender this people for cross-examination and for that purpose these people must be produced in court. So it says if those people are clearly such as alibi witnesses then we have no obligation to have them in court.

“In this case the learned Judge considered the question whether it is incumbent on the prosecution in a summary trial to call as witnesses all persons from whom statements have been taken. He summarised the position as follows:
(1) All witnesses from whom statement have been taken should be brought to the Court by the prosecution, except those whose evidence will clearly and obviously throw no light on the case; any witness not so brought to Court must be made available to the accused, should he desire to call him.”

Those people who we didn’t bring we must bring. In our case we brought all witnesses whom we wanted to call and those whom we didn’t bring, make them available. This is exactly what we did. We make them available, we give the list of witnesses, please indicate to us whom you want and we will bring them. But the case law seems to suggest we made available this people for the purpose of examination that means to be called as witnesses and not for the interview.

If I may refer your Lordship to our bundle, the case of Khoon Chye Hin v PP [1961] 27 MLJ 105. If I invite your Lordship to page 109, para B on the left,

“It is, of course, well settled that in a criminal case prosecuting counsel, provided there is no wrong motive, has a discretion as to whether or not to call any particular witness and in particular has a discretion not to call in support of his case a witness whom he does not believe to be a witness of truth.

In the case of Reg v Woodhead, Alderson B. referred to:—
“The rule which the Judges have lately laid down, that a prosecutor is not bound to call witnesses merely because their names are on the back of the indictment.”

He went on to say:—
“The witnesses, however, should be here, because the prisoner might otherwise be misled; he might, from their names being on the bill, have relied on your bringing them here, and have neglected to bring them himself. You ought, therefore, to have them in Court, but they are to be called by the party who wants their evidence.”

Again, in the case of Reg v Cassidy, Parke B. said that he considered the correct principle was:—
“That the counsel for the prosecution should call what witnesses he thought proper, and that, by having had certain witnesses examined before the grand jury whose names were on the back of the indictment, he only impliedly undertook to have them in Court for the prisoner to examine them, as his witnesses.””

Again, there is this kind of committal proceeding and those witnesses whom you called already before the grand jury you should produce in court. But in our case there is no such grand jury, no preliminary enquiry. And what would apply will be the second phase what my learned friend had said, the case of Teh Li Tong which said those that I did not bring I just need to make available if the defence desire to call. That’s all.

And reference is also made to the case of Adel Muhamamed El Dabbah, just below the case I read just now. And what the case said is we made available people who we think can give material evidence. In fact the word ‘material evidence’ appeared in the form.

YA, we know in this case that the witness mentioned about other incidents. The investigation was on all those incidents other than covered by the charge. But for the purpose of this case, for this charge which the AG decided to charge we did not see how other witnesses are relevant.

In fact the defence would know because the charge made reference to a particular place, particular time. They would have known whether or not he was there or was not there. And here in this case he was sure he wasn’t in that particular unit and he had submitted as exhibited in “MHZ-3” the list of witnesses of alibi to support his defence that he wasn’t in the unit. Very specific defence. Of course other than the fact if he can rebut the evidence of the chemist and the forensic doctors.

With regard to whether or not he has the right to interview, the case of Husdi v PP [1979] 2 MLJ 304 and Horace Henry Bryant v Victor Richard Dickson [1946] CCA 146 referred to in this particular case of PP v Ramli Bin Yusuff Criminal Revision No. K 43-08-2008 (tab 6) which is the latest case to discuss the right to interview.

This is a judgment by J Datuk Clement Skinner (as he then was). So what he said ultimately is this, at page 15 after having discuss the cases, S.112, the right to silence, Husdi and Bryant and Dickson,

“In the result, for the reasons given above I find that the accused’s right to interview prosecution witnesses only arises when the prosecution has waived the privilege over the witness statements of such witness and the witness agrees to be so interviewed.”

So if YA is to read the case, what happened in this case was the list of witnesses was supplied earlier even before the commencement of the trial. Now the defence wants to interview the witnesses. So they are saying, “Look if I were to allow you to interview the witnesses it is as good as nullifying the decision in Husdi which said 112 statement is privilege.” Because it is as good as giving you the 112.

So to reconcile with Husdi, your right will only arise when I no longer want to call this person or as in the case of Bryant v. Dickson, the defence counsel wrote to the prosecuting counsel and asked whether or not they want to call a particular witness and the prosecution said : No, we are not going to call, we have no objection for you to do that.

So when the prosecution has waived their right either as in the case of Bryant v. Dickson or at the close of the prosecution case with regard to witnesses whom they have not call then only your right….

YA: As to what? As to call the witnesses as witness? Kita dah close prosecution case so that mean you are not going to call this people anymore?

MY: Yes.

YA: So that was settled.

MY: That means we waived our right, we have no priority right over the witness then only your right to interview arises. But it said this right is subjected to those witnesses agreeing to be interviewed.

In fact in this particular case if you can look at page 2 of the judgment,

“The brief facts leading up to the making of the order are these.

The accused in the case is charged with an offence under the Anti-Corruption Act 1997. Prior to the commencement of the trial the defence wrote to the prosecution requesting for a list of the prosecution witnesses and also notifying the prosecution of their intention to interview witnesses who may be called by the prosecution.

The prosecution supplied the defence with a list of prosecution witnesses, but refused to allow their witnesses to be interviewed by the defence.

The defence has taken the stand that there are no proprietary rights in a witness and therefore the defence is entitled to interview the prosecution witnesses in preparing for its case, after having put the prosecution on notice of their intention to do so. The defence then wrote letters to certain prosecution witnesses with a view to interviewing them. Some of these witnesses have replied, agreeing to be interviewed whilst others did not respond.

The prosecution then intervened and advised or instructed these witnesses not to be interviewed by the defence as they had been subpoenaed to attend the trial.”

Of course in this case the learned judge talks about the right to silence. I quite disagree. To me it is not the right to silence; it’s the right to decline. I don’t have to decline because here we are talking about where is the law that can compel you to give statement.

Here the judge discusses Rule 34, which we have exhibited in our bundle. And Rule 34 is not the rule which confers the power for you to compel. And he discuss s.112. In fact in our bundle we exhibited s.111 where the police can actually give you notice, ask you to come, if you don’t want to come lodge a report to the Magistrate and have a warrant of arrest issued for you to be produced before. That’s compulsion. And there are many other laws with regard to the power of investigation where they have the power to compel. But, none given to counsel or to the court except by way of a subpoena. Even subpoena, if the law has provide certain particular method of securing attendance subpoena cannot be applied if that method after being employed failed to secure the attendance.

We have the cases. In fact just for the benefit of the court we have had in our bundle these cases of Raymond v. Tapson [1882] Chancery Division Vol.XXII 430 (tab 7) which talks about any party can apply for subpoena; Ismail v. Hasnul : Abdul Ghafar v. Hasnul [1968] 1 MLJ 108 (tab8) where the court talks about discretion to control the subpoena from being abused, if the witnesses cannot give relevant evidence the court can just set aside the subpoena; Rex v. Baines & Anor [1908-1909] Vol. XXV The Times Law Reports 79 (tab 9)where it talks the same thing and Exparte Simmons [1994] 1 KB 165 (tab 11) is one case where a particular method is employed provided by the law to secure attendance failing which you cannot apply for subpoena and you must use that method provided by the law.

So whether or not you can interview, all the case law seems to suggest you have the right but provided that they are prepared. And following the letter that the IO wrote, these people are not prepared. They said: if you want, have me subpoenaed. So all Mr. Karpal has to do is tell me I want Najib and I will apply subpoena from this court and then it’s up to Najib to set it aside, or Musa, or Rodwan for the matter.

But, you can’t asked the court and the court unfortunately is not vested with any authority to compel a witness to come here to be interviewed. There is no proviso. So your right is subjected to the other party’s right to decline to be interviewed.

So we agree there, En. Karpal has the right. But as I said this is not done in good faith, adding a few more names on the 1st of August to be interviewed when they had not at no time.

YA, our duty is when we close our case we make available the list of witnesses, you tell us whom you want and we will immediately supplied for subpoena. And then have them produce here. After that En Karpal can say : Look, before that I want to interview. But what he did was this – before I decide whom I want to call I want to interview first. []. And we give undertaking that we will make the necessary arrangement but we can’t just like the court cannot, we cannot compel these people.

But of course Dr. Khairul Annas came, Mumtaz came and few others came. 8 others, they choose not to come. Hasanudin refused to come. He said to talk to his counsel. Now I heard he said subpoena me. But these are Dato’ Seri Anwar Ibrahim’s friend, not the prosecution friend. All the while I thought En. Ibrahim Yaakob is En. Hasanuddin until I call him as a witness then he turns out to be Ibrahim Yaakob because the record refuses him having presence from the hearing where he shouldn’t be. Because I don’t know how this Hasanuddin looks like. And all these witnesses who attended the meeting are all known to Anwar, they are not our witness.

Like En. Karpal said, you ask us to record and we record. []. And the law said people from whom we recorded the statement we must made available, so we make available. You cannot say why are you doing this, what motive. There is no motive because the law says so. But making available and offering those witnesses to you does not equal to having them physically in court and that what the case no. 7 said – those whom I record statement I must bring and then call. If I don’t call and don’t bring to court I must made them available but it does not mean having the physically presence in court.

And the case of Abdullah Zawawi v PP [1985] 2 MLJ 16 said the practice of making available and offering these witnesses to the defence, witnesses from whom statement was recorded is a practice to prevent the invocation of s.114(g) Evidence Act.

And then we have a lose copy, a Court of Appeal case of Yusri bin Pialmi v PP [2010] 3 MLJ 445. Holding no.5 is the dissenting judgment of Kang Hwee Gee JCA. The principle is acceptable. It is a good law.

“It is always been the practice that the prosecution at the close of its case, offer or make available to the defence, witnesses whom it did not call to give evidence but those whose statements had been recorded in the course of police investigation. The practice has the force of procedural law to ensure that an accused is afforded all the means at his disposal to call any witness to testify on his behalf…”

And the case of Abdullah Zawawi, tab no.2 at page 18 of the report…

YA: Sorry Datuk. Apparently you use the word offering…

MY: Or make available. Offer or make available. Because in English cases they says tender, meaning you have there in the court and tender there.

Then Abdullah Zawawi case, at para I of the right hand column,

“The practice of making available a witness or witnesses from whom statements have been taken is to prevent the defence from commenting upon the honesty of the prosecution and thus invoking the often-quoted presumption of adverse inference under section 114 (g) of the Evidence Act.”

So, YA the closest you can come to this is what the case of Teh Lee Tong said: those whom we didn’t bring to court we must made available. So meaning making available does not mean making it physically presence. It is just as in this case of…

YA: So, bagi list saja cukup? Is that what you are saying?

MY: Yes. Because if you want just indicate to us…if your Lordship were to look at the case of Khoon Chye Hin and also the case of Adel Muhammed El Dabbah, they said maybe after having look at the name they may decide on whom they want to call so they make…

YA: So you make an offer by giving the list and they tell you I want this fellow, does that mean that you have to physically…

MY: Yes, then we will have to. The indication is…

YA: You have to?

MY: The indication must be you want them as witnesses. Because all the cases referred to call them as witness to be examined not for interview.

So the case on interview will be the case of PP v Ramli bin Yusuf. That’s the only case. In fact, the case of Bryant v. Dickson also the same, it said of course before that they went for interview. It said it will be good for you to interview before you call them. I mean it’s mentioned in the case of Bryant v. Dickson.

If I may read to your Lordship Bryant v. Dickson, tab 5, page 151 starting from the second paragraph.

“Another point taken is that Campbell was not called at the trial. It is said that it was the duty of the prosecution to have supplied the defence with a statement which Campbell had admittedly made to the prosecution. The prosecution, for reasons which one can well understand, did not call Campbell. Is there a duty in such circumstances on the prosecution to supply a copy of the statement which they have taken to the defence? In the opinion of the Court there is no such duty, nor has there ever been. In the first place, if they had supplied a copy of the statement of Campbell, that would not have enabled the defence to put the statement in. The statement which Campbell made could have become evidence only if he had been called as a witness. But it is said that it was the duty of the prosecution to put that statement at the disposal of the defence. In the opinion of the Court, the duty of the prosecution in such a case is to make available to the defence a witness whom the prosecution know can, if he is called, give material evidence. That they did in this case, because when a letter was sent by the defence to the director of Public Prosecutions, the reply of the Director of Public Prosecutions showed quite clearly that the prosecution did not intend to call him, but he added: “There is no objection to your taking a statement from Campbell if you wish to do so”.”

This would appear as far as the court is concern tantamount to make it available. Because, “In the opinion of the Court, the duty of the prosecution in such a case is to make available to the defence …”. And this they did. How they do it is just by telling I’m not going to call, if you want to record the statement you can. And that as far as this case is concern is enough to making it available.

“There is no objection to your taking a statement from Campbell if you wish to do so”. That was said well before the trial. It was said after the close of the police court proceedings, when the defence knew that Campbell was not being called by the prosecution, and therefore could quite well themselves have gone to Campbell and taken a statement from him. Campbell was at the Court. Who brought him to the Court I do not know, nor is it material to inquire, but the defence could have called him if they had liked. No doubt Mr. Scott Henderseon would not have been so unwise as to call him without having a statement from him, but if the defence did not choose to take a statement and find out what he was prepared to say, that is not a matter with which the prosecution are concerned.”

That’s all, YA. Make available. That’s all. And that so if you wish to record the statement. As far as the prosecution, we have done that. And now his right to interview arises. What about the other party? The case of PP v Ramli Bin Yusuff said your right is subjected to the other person’s right to decline. And in this case before your Lordship those witnesses have declined to be interviewed which they have the right to do so, their constitutional right to do so.

My Lord, one more thing I want to add. My learned friend with regards to the alibi said this: these people have gone to see the police; the police have recorded their statement. I thought the purpose of interviewing a witness is to ascertain what he knows about the fact. Anwar should know how much information he has with regard to the case. But Mr. Karpal said I want to interview this witness to know what the witness told the police. I mean that cannot be the reason. The reason is to know how your evidence can help me, how much do you know whether it is relevant or not. In this case they already knew otherwise they wouldn’t identify this witness. But to say that I need to see this people to find out from them what they told the police is not the purpose of the interview. Like I said, there is no good faith. This is not [] says when he says that the foundation of justice is good faith and obviously in this particular application that is lacking.

I urged your Lordship to dismiss this application and to order the defence to indicate to the prosecution whoever they want to call so that we can make the necessary arrangement to help them in court when the trial resume next week. Much obliged.

KS: I would [] because my learned friend has updated me with the case of Yusri Bin Pailmi v PP. It is vey clear my Lord. If I could read it.

YA: Tab berapa tu?

KS: It is the lose copy that my learned friend referred to just now. It set out the law very very clearly my Lord. In fact, it is what your Lordship ought to be guided by. I read it.

“It is always been the practice that the prosecution at the close of its case, offer or make available to the defence, witnesses whom it did not call to give evidence but those whose statements had been recorded in the course of police investigation. The practice has the force of procedural law to ensure that an accused is afforded all the means at his disposal to call any witness to testify on his behalf. The prosecution’s failure in not offering or making them available under the circumstances has given rise to the question of whether the accused had been afforded a fair trial. ”

Here 71 witnesses were offered. We indicated we require 25. Undertstanding between the parties in the chamber in fact before your Lordship that the venue will be here, in court itself that they were to be interviewed and that understanding was implemented.

And to say the rest don’t want to come is not for the prosecution to say, it is for them to tell the defence that they don’t wish to come. It is for the defence to enquire from them what statement they have made in the course of the police investigation. It is not only the question of alibi witnesses here, its’ other witnesses. We can’t object to the [] of the evidence relating to the Prime Minister, it could be beyond that. My learned friend can’t impose us as to the evidence, which we want to elicit from the witnesses. And again we have again indicated in the second application that we need the two maids of En. Hasanuddin, the two Indonesian maids. They have not been indicated anywhere here my Lord that they don’t wish to be interviewed. Why are they not being made available? They are material witnesses.

I take you to the question of expense my Lord. Once the witness is offered to the defence then the prosecution bears the expenses my Lord for the attendance of that witness during the course of the trial. We want them to attend as witnesses, subpoena that then we would have bear the expenses.

YA: I think this one we already agreed if you want them as your witness just let them know and they will supply the subpoena. They will serve it, they will…

KS: Yeah, but we need them.

YA: And that’s for?

KS: Attendance in court.

YA: They agree to testify in court but you are asking them to be interviewed. Now, that’s the dispute sekarang ni.

KS: My Lord, automatically if we accept the witnesses it is the interview as of right. []

YA: So now you are asking them to produce the witnesses on their own expenses for purpose of being interviewed.

KS: Of course. That is the purpose of offering. []. And my learned friend refers to this case of tab 6, page15,

“In the result, for the reasons given above I find that to the accused’s right to interview prosecution witnesses only arises where the prosecution has waived the privilege over the witness statements of such witness and the witness agrees to be so interviewed.”

[]. Where is the waiver of the privilege? []. If a witness is offered it is automatically that we have the right to see the witness, talk to the witness. That’s the purpose of offering. It is done all the time. What a [] exercise being taken but something real. It is not for my learned friend to say that the witnesses are not material witnesses. It is only for the defence to decide whether they are material after we interview them. And facts that statements were taken from these witnesses shows that they would be material. Otherwise why take statement from witnesses? And on the [] why is the evidence is not material?

I can’t see we have to go in elaborate exercise to come to the conclusion that the witnesses is offered must be physically there to say what he wants and for us to decide in the right of what he say, even to the asking my Lord to what he said in 112 statement. He is our witness. Once offered, we accept. It’s like a contract my Lord, you offer we accept. It is as simple as that. In fact in all these years, in all these centuries, in England and in anywhere in the world that is what is done where the English law applies in court.

We urged your Lordship to very carefully consider this position that we have the right for their attendance in court and [] of the prosecution. We have the right to see them physically, we have the right to talk to them. They have the right then to refuse to become a witness. Of course we will not use someone who is against us. It may have been we have elicit some evidence from the witness.

It is not only the question here of alibi. The credibility of the complainant here could be [] through witnesses who had been offered. Attack his credibility. His visit to the PM’s house. Statement taken from Datin Rosmah in evidence. Are those material witnesses my Lord? Can they say they will not come and you subpoena us. Had they not being offered and we wanted them then we would subpoena them my Lord, that we would have to subpoena them. And that is when personal subpoena arises. And witness other than one offered is thought to be material for the defence to call. Those are the situation. And that is the situation. And that situation is not here.

The Indonesian maids are to be made available. They are in Indonesia. You can’t make available or offer someone who are not around. It is impossible. Make available or offers someone who are not around.

We urged your Lordship to carefully consider the position.

YA: Ya. Ada lagi ke?

KS: It is not as simple as my learned friend appears to make it.

YA: Ya, anything else you want to add?

KS: I think that is what I’m trying to impress upon your Lordship. The importance of…

YA: Yes, it is very important. I know.

KS: We need a ruling with this sensible and for affording Dato’ Seri Anwar Ibrahim a fair trial. He is entitled to that. You can’t deny him that. Nobody can. We urged your Lordship to make order in terms in relation to the two applications before your Lordship.

YAL: Saya perlu meneliti segala otorito-otoriti yang dikemukakan. Obviously I need time. Since you are coming back on Monday, so I think I’ll deliver it on Monday. I’ll deliver it on Monday, 8th August 2011.

The appeal today is against the decision of the trial judge not to recuse himself from hearing the criminal proceedings against the Appellant.

Our preliminary objection as mentioned in our notice earlier to the Appellant and this honorable court is that the ruling of the trial judge not to recuse himself is not appealable. The trial judge’s ruling is clearly not within the purview of the definition of ‘decision’ in Section 3 of the Court of Judicature Act 1964.

YA, just to inform the honorable court this is the third application to recuse the trial judge by the Appellant and this honorable court on appeal pertaining to the second application has decided that the judge ruling not to recuse himself is not appealable as it is not within the purview of the definition of ‘decision’ as provided by Section 3 of the Court of Judicature Act 1964. It is reported in Dato’ Seri Anwar Ibrahim v PP [2011] 2 CLJ 845.

Our reason for this objection is stated at page 10 of our written submission. If I may refer YA to page 10 at paragraph 16. As mentioned here, the ruling of the learned trial judge, in refusing to acquiesce to the Appellant’s third application for recusal is clearly not within the purview of the definition of ‘decision’ in Section 3 of Court of Judicature Act 1964.

The said ruling was made in the course of a trial, i.e. at the close of the prosecution case. It must be emphasized YA, that the said ruling had not finally disposed the rights of the Appellant.

YA, the rights of the Appellant to appeal against the decision of the high court are governed by Section 50 of the Court of Judicature Act 1964 which provides that:

50. Jurisdiction to hear and determine criminal appeals

(1) Subject to any rules regulating the proceedings of the Court of Appeal in respect of criminal appeals, the Court of Appeal shall have jurisdiction to hear and determine any appeal against any decision made by the High Court—
(a) in the exercise of its original jurisdiction; and
(b) in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by the Sessions Court.

(2) An appeal shall lie to the Court of Appeal, with the leave of the Court of Appeal, against any decision of the High Court in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by a Magistrates’ Court but such appeal shall be confined to only questions of law which have arisen in the course of the appeal or revision and the determination of which by the High Court has affected the event of the appeal or revision.

(2A) …

(3) …

(4) …

The word ‘decision’ as appeared in Section 50 of the Court of Judicature Act is defined in Section 3 of the same Act:

“decision” means judgment, sentence or order, but does not include any ruling made in the course of a trial or hearing of any cause or matter which does nit finally dispose of the rights of the parties.

YA, as we stated here, in the explanatory notes when the word ‘decision’ in Section 3 of the Court of Judicature Act was amended, the reasons for the amendment were stated as follows:

In Dato’ Seri Anwar Ibrahim v PP [199] 1 MLJ 321 at tab 11 of our bundle, the Court of Appeal when deliberating on the ambit of the word ‘decision’ in Section 3 of the Court of Judicature Act opined at page 335 that:

“A decision made pending the trial of the charges against the appellant is not, in our considered opinion, a decision (ruling) that had the effect of finally determining the rights of the appellant. It is only the outcome of the trial that would have the effect of finally disposing of his rights. A decision on bail (by the court of first instance), whether the grant or refusal of it, will not finally determine the rights of the appellant in the outcome of his trial. That being so, the order of the High Court in refusing to admit the appellant to bail is not appealable to the Court of Appeal.”

Similarly in Saad Bin Abas & Anor v Public Prosecutor [1999] 1 MLJ 129, the application of Section 50(2) of the Court of Judicature Act was explained by the Court of Appeal at page 138 as follows:

“So, for the purpose of s 50(2), this court has to first ascertain whether the ‘decision’ of the High Court in ordering the applicants before us to enter on their defence was a ruling that had the effect of finally disposing of their rights. Certainly not, and it would only happen after a decision had been made at the close of the defence.”

And in our case it is at the close of the prosecution case.

YA, in Regina v Collins [1970] 1 QB 710 at tab 12, the coa of England, pursuant to a motion filed with regards to the decision of the court below in refusing to order further particulars of a count in an indictment held that:

“…the court had no jurisdiction to hear the application; that the Court of Appeal (criminal division), having the same powers as its predecessor, the Court of Criminal Appeal, which was created by the Criminal Appeal Act 1907, had no statutory jurisdiction to hear an interlocutory appeal; that since the court was created by statute, it had no powers beyond those conferred on it by Parliament. Accordingly, there was no inherent jurisdiction to hear interlocutory appeals.”

The above case did not define ‘interlocutory’ nor ‘interlocutory appeal’. However, in Black’s Law Dictionary (Eight Edition), the word ‘interlocutory’, (when referring to an order, judgment, appeal etc.) is defined as ‘interim or temporary, not constituting a final resolution of the whole controversy.’

On the other hand, the phrase ‘interlocutory appeal’ is defined in Black’s Law Dictionary (eight Edition) as ‘an appeal that occurs before the trial court’s final ruling on the entire case.”

It cannot be gainsaid that the appeal filed by the Appellant herein is actually an interlocutory appeal as it was ‘an appeal that occurs before the trial court’s final ruling on the entire case.’ Such being the case, the definition of the word ‘decision’ in section 3 of the Court of Judicature Act would clearly preclude the Appellant from pursuing with this appeal.

If I may refer YA to tab 11 of our bundle where J NH Chan at page 330 had further explained at paragraph D,

“The real distinction is between (for want of a better word) what is called final judgments and orders and interlocutory judgments and orders. In general, a judgment or order which determines the principal matter in question is termed ‘final’: see 26 Halsbury’s Laws of England, para 505 at p 238. Actually, the use of the term ‘final’ is tautological as all judgments and orders are final. The term (final) is used for the purpose of distinguishing between judgments and orders and ‘interlocutory’ judgments and orders. The difference is that judgments and orders which are not termed ‘interlocutory’ judgments and orders are appealable under the new meaning of the word ‘decision’ as defined in s 3 by the 1998 amendment. In other words, judgments and orders which determine the principal matter in question are termed ‘final’ judgments and orders, and they are appealable. But, those judgments and orders which give no final decision on the matters in dispute (which are termed ‘interlocutory’ judgments and orders) are now no longer appealable.”

YA, in fact, this Honorable Court when deliberating on an appeal filed by the same Appellant pursuant to his second application for recusal in Dato’ Seri Anwar Ibrahim v PP [2011] 2 CLJ 845 at tab 7 of our bundle. May I refer first to the head notes in paragraph E at page 845,

“The accused had during the course of the trial filed an application to recuse the learned trial judge on the grounds that the trial judge had intimidated the accused’s learned counsel with contempt proceedings. The trial judge dismissed the recusal application. The accused filed this appeal against the said decision. The learned Deputy Public Prosecutor raised a preliminary objection on the ground that the ruling of the trial judge was not within the purview of ‘decision’ in s. 3 read with s. 50(1) of the Courts of Judicature Act 1964 (‘the Act’), as it was made in the course of a trial and did not finally dispose of the accused’s rights under the charge.”

Then it was decided by this honorable Court, If I may refer to paragraph 16 of page 851,

“[16] The intention as manifested in s. 3, read with s. 50(1)(a) and the Explanatory Statement, is clear and unambiguous ie, to bar the filing of an appeal against a ruling made by a trial court and also to help expedite the hearing of cases in trial courts. In other words, while the law allows appeals against a judgment, sentence or order, it expressly excludes all appeals against all rulings made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties. Put simply, the intention of Parliament in enacting s. 3 and s. 50(1)(a) is to exclude interlocutory appeals in criminal causes or matters.”

YA, then at paragraph 17,

“[17] As the definition of ‘decision’ in s. 3 is clear and unambiguous, it is the duty of the court to give effect to it. This Court has no powers beyond those conferred by Parliament. Accordingly, there is no jurisdiction to hear an interlocutory appeal i.e. Interim appeal against a ruling which does not constitute a final resolution to the whole controversy, or “an appeal that occurs before the trial court’s final ruling on the entire case” (see Black’s Law Dictionary, 8th edn, and Regina v Collins, supra). Justice demands that cases should move without unnecessary interruption to their final conclusion. The right of a party who is aggrieved by a ruling, after all, is not being compromised, as the party can always raise the issue during the substantive appeal, if any, which may be filed after the trial process is brought to its conclusion.”

YA, we go straight to paragraph 19,

“[19] In the instant appeal, the ruling of the learned trial judge in dismissing the accused’s second recusal application was made in the course of the trial which does not finally dispose of the rights of the accused and is therefore not a decision within the ambit of s. 3 read with s. 50(1)(a). It is only the outcome of the trial that would have the effect of finally disposing of his rights.”

It goes on further at paragraph 20,

“[20] The underlying reason behind the amendment to the definition of ‘decision’ in s. 3, introduced by Amendment Act A1031 of 1998 with effect from 31 July 1998, is to stop parties from filing appeal after appeal on rulings made by the trial court in the course of a trial, thereby stifling a trial before the trial court: See Dato’ Seri Anwar Ibrahim v. PP [2010] 9 CLJ 625 FC.”

And the conclusion at paragraph 21,

“Conclusion

[21] On the foregoing grounds, we unanimously sustained thepreliminary objection and dismissed this appeal in limine.”

At page 862 of the same case, J Abdul Malik Ishak stated in paragraph 56,

“[56] The ruling by the learned trial judge is interlocutory in nature and made in the course of the trial and it is not final. And since the ruling of the learned trial judge is not appealable, this court has no jurisdiction to hear the appeal.”

YA, This Honorable Court in Dato’ Seri Anwar Ibrahim v Public Prosecutor (Court of Appeal. Criminal Appeal No. W-05-178-2010 – Unreported), tab 9 of our bundle which was an earlier appeal filed by the Appellant against the ruling of the learned trial Judge in refusing to allow the defence to inspect the section 112 statement of the complainant, had held that:

“(1) We are of the view that the ruling of the learned trial Judge was made in the course of a trial where the rights of the Appellant has not been fully disposed off. Therefore the ruling in refusing to allow the statements of the complainant recorded under section 112 Criminal Procedure Code, to be produced for inspection by the Appellant is not within what is envisaged by the definition of “decision” as provided for by section 3 of Courts of Judicature Act 1964.

(2) Our jurisdiction to hear and determine the appeal is governed by section 50 of Courts of Judicature Act 1964. We have no jurisdiction to hear an appeal which is not against a decision made by the High Court.”

Further at paragraph 31 of our written submission, The Court of Appeal in the above case then proceeded to examine the term “decision” as defined in section 3 of the CJA, the explanatory statement accompanying the amendment to the term “decision” and the relevant authorities illustrating the said term.

Having done do, the Court of Appeal held that:

“(4) It cannot be gainsaid that the appeal filed by the Appellant herein is really an interlocutory appeal as it is an appeal that occurs before the trial’s court final ruling on the entire case.

(5) Therefore we have no jurisdiction to hear and determine this appeal.”

The Federal Court had also recently dealt with the same issue in Dato’ Seri Anwar Ibrahim v Public Prosecutor [2010] 6 MLJ 585, tab 8 of our bundle in paragraph 24,

“[24] The underlying reason behind the amendment to the definition of ‘decision’ in s 3 of the CJA, introduced by Amendment Act A1031 of 1998, which came into effect on 31 July 1998 is to stop parties from stalling a trial before the trial court by filing appeal after appeal on rulings made by the trial court in the course of a trial. This is what the amendment seeks to achieve as evident from the explanatory statement to the Bill which reads:

2 Clause 2 seeks to amend section 3 of Act 91.

At the moment, in the course of hearing a case, if the court decides on the admissibility of any evidence or document, the dissatisfied party may file an appeal. If such appeal is filed, the court has to stop the trial pending the decision of the appeal by the superior court. This cause a long delay in the completion of the hearing, especially when an appeal is filed against every ruling made by the trial court. The amendment is proposed in order to help expedite the hearing of cases in trial courts.”

And the conclusion of the above case is,

“CONCLUSION

[26] For the above reasons, we agree with the Court of Appeal that the ruling of the trial court in this case is not a ‘decision’ as defined in s 3 of the CJA and hence it is not appealable. In the light of our decision, it is therefore not necessary for us to consider grounds 3 and 4 of the petition.”

Applying the principles as enunciated by both the Federal Court in the above case and also the latest decision of the Court of Appeal in Dato’ Seri Anwar Ibrahim v PP [2011] 2 CLJ 845, it is rather obvious that the ruling of the learned trial Judge is refusing to acquiesce to the demand of the defence for him to be recused, is definitely a non-appealable ruling.

On this preliminary issue alone, we respectfully urge this Honorable Court to dismiss the Appellant’s appeal for want of jurisdiction.

YA Dato’ Hasan: Sebelum itu, perayu memang tidak hadir ya, En.Karpal?

KS: He is here.

YA Dato’ Hasan: Kenapa tak datang depan?

DSAI: []

YA Dato’ Hasan: Okay, proceed.

KS: My learned friend starts off by saying that this is the third attempt by the Appellant to recuse the learned trial judge. The number of attempts is not an issue, my lord. An accused has the right to exhaust any remedy he has. The number of attempts does not count.

What we have here is the interpretation of the word ‘decision’ in Section 3 or rather the amendment of Section 3 of the Court of Judicature Act. That of course is [] would be Section 50 of the Court of Judicature Act with the right of appeal of an accused person.

I take your Lordship straight away to what is at hand. We refer to our submission.

The respondent has given notice of preliminary objection that pursuant to Section 50 and the definition of ‘decision’ in section 3 of the Court of Judicature Act 1964 and having regard to the decision of this Court in Dato’ Seri Anwar Ibrahim v PP [2011] 2 CLJ 845 [Tab 1] and in which J Abdul Malik had the occasion to say to the court the issue having arisen in the course of the trial and having been decided, that decision is not a final order and, therefore, it could not be appealed to the Court of Appeal.

My Lord, Malik J had occasioned to say this to Honorable Court; and the issue having arisen in the course of the trial and having been decided, that decision is not a final order and therefore, it could not be appealed to the Court of Appeal.

The order of the trial judge dated 6th June 2011 is against his refusal to recuse himself for further proceeding with the trial in disqualifying himself so to do.

What has to be noted is that the Federal Court has had occasion to consider the issue relating to final order in Dato’ Seri Anwar Ibrahim v Public Prosecutor [2010] 9 CLJ 625 [TAB 2]. However, the Federal Court there was dealing, not with an order of recusal, but with a ruling relating to the recording of a statement under Section 112 of the Criminal Procedure Code.

It is to be noted that this issue relating to recusal of a judge arose in this court in Dato’ Seri Anwar Ibrahim v Public Prosecutor [2011] 2 CLJ 845.

It was a unanimous decision of the Court of Appeal that the intention as manifested in the definition of decision in section 3 of the Act, read with the Section 50(1)(a) of the Act and the Explanatory Statement, was clear and unambiguous i.e. to bar the filing of an appeal against a ruling made by a trial court and also expedite the hearing of cases in trial courts. The intention of Parliament in enacting Section 3 of the Act, read with section 50(1)(a), was to exclude interlocutory appeals in criminal caused or matters.

The Court of Appeal went on further to hold as the definition of ‘decision’ in section 3 of the Act is clear and unambiguous; it is the duty of the court to give effect to it. The court has no powers beyond those conferred by Parliament. Accordingly, there was no jurisdiction to hear an interlocutory appeal i.e. interim appeal against a ruling which does not constitute a final resolution of the whole controversy or an appeal that occurs before the trial court’s final ruling on the entire case.

The Court of Appeal went on further to hold the ruling of the learned trial judge in dismissing the accused’s recusal application was made in the course of the trial which did not finally disposed the right of the accused and was therefore not a decision within the ambit of Section 3 read with Section 50(1)(a) of the Act. It was only the outcome of the trial that would have the effect of finally disposing his rights with Abdul Malik Ishak JCA, while concurring, held the ruling by the learned trial judge was interlocutory in nature and made in the course of the trial and was not final. Since the ruling of the trial judge was not appealable, the court has no jurisdiction to hear the appeal. Hence the appeal should be dismissed for want of jurisdiction.

It is submitted with respect that the abovementioned rulings by the Court of Appeal are erroneous. The Court of Appeal is not bound by its own decisions.

In Dalip Bhagwan Singh v Public Prosecutor [1998] 1 MLJ 1 [TAB 3], the Federal Court at page 14 stated,
‘In Malaysia, the Federal Court and it forerunner, i.e. the Supreme Court after all appeals to the Privy Council were abolished, has never refused to depart from its own decision when it appeared right to do so’.

However, at the same page preceding the above passage appears the following caveat,
‘Experience in the United Kingdom has shown that the power ‘to depart from a previous decision when it appear right to so’ has been used very sparingly’.

‘With respect, we are unable to accept the learned deputy’s invitation to depart from Muhammed bin Hassan for three reasons. In the first place, Muhammed bin Hassan is a very recent decision of this court. It is bad policy for us as the apex court to leave the law in a state of uncertainty by departing from our recent decisions. Members of the public must be allowed to arrange their affairs so that they keep well within the framework of the law. They can hardly do this if the judiciary keeps changing its stance upon the same issue between brief intervals. The point assumes greater importance in the field of criminal law where a breach may result in the deprivation of life or liberty or in the imposition of other serious penalties. Of course, if a decision were plainly wrong, it would cause as much injustice if we were to leave it unreversed merely on the ground that it was recently decided. In a case as the present this court will normally follow the approach adopted by the apex courts of other Commonwealth jurisdictions as exemplified by such decisions as R v Shivpuri [1986] 2 All ER 334’.

In R v Shivpuri [1986] 2 ALL ER 334 [TAB 5] at page 345 the House of Lords stated,

‘Firstly, I am undeterred by the consideration that the decision in Anderton v Ryan was so recent, the 1966 Practice Statement is an effective abandonment of our pretention to infallibility. If a serious embodied in a decision of the House has distorted the law, the sooner it is corrected the better. Secondly, I cannot see how, in the very nature of the case, anyone could have acted in reliance in the law as propounded in Anderton Ryan in the belief that he was acting innocently and now find that, after all, he is to be held to have committed a criminal offence. Thirdly, to hold the House bound to follow Anderton v Ryan because it cannot be distinguished and to allow the appeal in the case would, it seems to me, be tantamount to a declaration that the 1981 Act left the law of criminal attempts unchanged following the decision in v Smith [1973] 3 ALL ER 1109, [1975] AC 476. Finally, if contrary to my present view, there is a valid ground on which it would be proper to distinguish cases similar to that considered in Anderton v Ryan, my present opinion on that point would not foreclose the option of making such a distinction in some future case.’

The propositions which can be distilled from the abovementioned authorities are as follows:

[1] the Federal Court has never refused to depart form its own previous decision when it appeared right to do so;
[2] Experience in the United Kingdom has shown that the power to depart from a previous decision when it appears right to do so has been used very sparingly;
[3] if a decision were plainly wring it would cause as much injustice if the court were to leave it unreserved; and
[4] if a serious error embodied in a decision of a court has distorted the law, the sooner it is corrected the better.

It is submitted, this principles equally apply to the Court of Appeal.

It is accepted that an appeal is merely a continuation of proceedings by way of rehearing [see Balasingham v Public Prosecutor [1959] 1 MLJ 193 [TAB 6]; See also Adzhaar Ahmad v Public Prosecutor [1996] 4 MLJ 85 [TAB 7]] in which Alauddin J (as he then was) had occasion also to say “that an appeal is merely a continuation of proceedings by way of rehearing”.

If this is the position in law, and it has to be, then this court should carefully consider whether if it had, in the first instance sat, and had come to the conclusion that the learned trial judge ought to have been recused, then that would have been the end of the matter. The trial would have had to be, as a consequence, commenced de novo. This would have meant that the order made would have been final and not an interlocutory or interim one.

Under these circumstances, this court should have the jurisdiction to hear the appeal. The position is as simple as that.

It is respectfully prayed therefore, that this court has the jurisdiction to hear the appeal and consider the merits of it.

Then again, this court should consider if a sanction or consent to prosecute is fundamentally defective in that they are unsigned, and an application is made for a ruling on that and if the court rules against that, would that mean it would not be a final order but had to be raised only on appeal on the reasoning that the trial should be expedited as this was the intention of Parliament in bringing about the amendment to the word decision in Section 3. Such a position would be untenable and would be against public interest in that public expense would be involved in proceeding with a hopeless trial. That could not have been the intention of the Parliament.

We say at this circumstances My Lord, the decision made by this court regarding the same matter should be reviewed, and we pray that this appeal should be proceed with the merits. Much obliged.

YA Dato’ Hasan: Yes, Dato’ Nordin?

NH: Only on one matter, My Lord. Regarding one of the case cited in the written submission, this is what we have to say, YA. We should not be part with the decision of this Honourable Court on the same issue because based on the principle cited, we submit that there is no serious error, the decision is the correct decision and also the other principle which say that this court to reverse decision must be used sparingly and not []. So we submit that we should not be part with the decision based on the reasoning and based on what the law had provide.

KS: YA, we have instruction from our client to apply for stay of proceeding pending the outcome of the appeal to Federal Court. We would like to use the case of Rowstead in which it will apply to this court also. We read para 3 of this case at page 122 [read].

NH: We submit My Lord that this case of Rowstead System is not applicable in our case, because the issues of Section 2 is never argued in this case and Section 3 is with regard to the jurisdiction in which this Honorable Court [] to appeal. Obviously this court has no jurisdiction, and cannot grant bail just merely because of Rowstead. That is our submission YA.

KS: The principle of this case [] declare [] a just sitting in own cause. In any event the Federal Court allow the appeal, and if your Lordship [], []

Let me say once again that your Lordship ought to seriously consider our application. We will file the appeal as soon as possible, maybe tomorrow itself.

KS: My Lord, there is an application before your Lordship. This is an application impugning the neutrality of this court in that YA has made certain conclusions at the close of the prosecution before calling upon the applicant to enter upon his defence on the ground of prejudgment amounting to bias and therefore calling upon YA from further presiding at the trial.

It is submitted at the outset that an application to disqualify a judge on the ground of bias consequent upon prejudgment does not amount to contempt of court. It has been held a judge must approach such an application without being defensive or resentful. The candour on the part of the judge in expressing his reasons for a decision is to be defended, then candour on the part of the litigant has likewise to be expected (see Tan Kim Hor v Tan Chong Motor Company Sdn Bhd & Ors [2003] 2 CLJ 434 [Tab 1]).

It is submitted that the court has misdirected itself on the standard of proof on the prosecution in relation to the application of the maximum evaluationtest to the evidence of PW1 and therefore being guilty of prejudgment and bias.

In handing down the decision at the close of the prosecution case the court has dealt with the evidence of PW1 at length after bearing in mind what was said by Lord Hailsham in PP v Killbourne [1973] 1 All ER 440 @ 425,

‘Corroboration is only required or afforded if the witness requiring corroboration or giving it is otherwise credible. If his evidence is not credible a witness testimony should be rejected and the accused acquitted, even if there could be found evidence capable of being corroboration in other testimony. Corroboration can only be afforded to or by a witness who is otherwise to be believed. If a witness’s testimony falls of its own inanition the question of his needing, or being capable of giving corroboration does not arise.’

After setting out the above extract from Killbourne the court went on to say,

‘Realising the fact that the charge against the accused hinged on whether the evidence of PW1 could be accepted or not, it was not a surprise the defence had, either cross-examination of PW1 or in their submission, tried to paint a picture as someone who has zero credibility and thus his evi could not be believed and must be rejected.’

Obviously the court considered PW1’s evidence as fundamental towards proof of the charge against the applicant and, it was for this reason, that the court rook pains to minutely set out his evidence in the written decision at the close of the prosecution case. It is pertinent to note the court came to the following set out at page 43-44,

‘Nothing came out from the lengthy cross-examination of PW1 or from the evidence of other prosecution’s witnesses tat could suggest what PW1 had told in his evidence was something which was not probable. I find PW1’s evidence remains intact. He had truthfully and without embellishment or exaggeration in his evidence narrated in minute detail how he was sodomised by the accused on the date and at the place stated in the charge. I find him to be a truthful witness and his evidence is reliable and if accepted would establish all the facts required to prove the charge against the accused.’

The court relied specifically on Looi Kaw Chai & Anor v PP [2003] 1 CLJ 754 [Tab 2] and adverted to it in the course of its decision at page 35-37 as follows,

‘At the close of prosecution case what was needed to be proved was a prima facie case. Under Section 180(4) of Criminal Procedure Code a prima facie case is said to be made out when the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction.’

As was held in the case of Looi Kow Chai & Anor v PP [2003] 1 CLJ 754, in determining whether prosecution had successfully established prima facie case or not, the court must subject the prosecution’s evidence to the maximum evaluation. It was held in that case:

‘The correct test to be applied in determining whether a prima facie case has been made out under s.180 of the Criminal Procedure Code (and this would apply to a trial under s. 173 of the Code) is that as encapsulated in the judgment of Hashim Yeop Sani FJ (as he then was) in Dato’ Mokhtar bin Hashim & Anor v. Public Prosecutor. Therefore, a judge sitting alone under s. 180 of CPC must subject the prosecution evidence to maximum evaluation and ask himself the question, ‘If I decide to call upon the accused to enter his defence and he elects to remain silent, am I prepared to convict him on the totality of the evidence contained in the prosecution case? If the answer is in the negative, then no prima facie case had been made out and the accused would be entitled to an acquittal. Subjecting the evidence of the prosecution to the maximum evaluation to determine if the defence was to b called did not mean that the prosecution had to prove its case beyond reasonable doubt at this intermediate stage (see pp.80H-I, 81D-E, 85E0; Dato’ Mokhtar bin Hashim & Anor v PP [1983] 2 MLJ 232 followed.’

In Looi Kaw Chai, the Court of Appeal adopted what was said by Vincent Ng J (as he then was) in PP v Ong Cheng Heong [1998] 6 MLJ 678@691 [Tab 3] in relation to the amendment (Acts A979) to the Criminal Procedure Code as follows:

‘Thus to me, maximum evaluation simply means evaluation, on a prima facie basis, of each and every essential ingredient of the charge as tested in cross-examination. In other words, maximum evaluation connotes quantitative rather than qualitative evaluation of the evidence; with focus more on the evidential burden in terms of evidence led rather than the persuasive burden in terms of qualitative degree of proof. What then constitutes a ‘prima facie case’? ‘Prima facie’ means on the face of it or at first glance. To me, in the light of Act A979, perhaps the most appropriate definition of a prima facie case’ could be found in the Oxford Companion of Law (p 987), which has it as:

‘A case which is sufficient to call for an answer. While prima facie evidence is evidence which is sufficient to establish a fact in the absence of any evidence to the contrary, but is not conclusive.’

It would follow that there should be credible evidence on each and every essential ingredient of the offence. Credible evidence is evidence which has been filtered ad which has gone through the process of evaluation. Any evidence which is not safe to be acted upon should be rejected. (Emphasis added.)’

Obviously the court did not have regard to what was said by Vincent Ng J in Ong Cheng Heong as emphasized above. It is undisputed PW1 gave evidence under oath to tell the truth, the whole truth, and nothing but the truth. By concluding PW1 was a truthful witness at the close of the prosecution case, the court obviously considered his evidence to be conclusive, namely it was the truth, the whole truth, and nothing but the truth.

It follows PW1’s evidence has been accepted by the court as irrebuttable evidence. If this is the position and it is then clearly the provisions of section 182A(1) of the Criminal Procedure Code which state:

‘At the conclusion of the trial, the court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt.’

Would be incapable of fulfillment which in effect, would amount to prejudgment of the guilt of the applicant, which would demonstrate bias on the part of the court at the close of the prosecution case, meaning, the applicant would not be in a position to be afforded a fair trial.

It is worthy of not that Looi Kow Chai, and consequently by implication, Ong Cheng Heong, have been adopted in Balachandran v PP [2005] 2 MLJ 301 @ 316 [TAB 5] and lately in Magendran Mohan v PP [2011] 1 CLJ 805 [TAB 6].
The correct test to apply would be the real danger of bias test as enunciated by the House of Lords in R v Gough [1993] 2 ALL ER 724 [TAB 7] and followed by the Federal Court in Mohd Ezam Mohd Noor & Ord v Ketua Polis Negara [2001] 4 CLJ 701 [TAB 8].

With the court having accepted the evidence of PW1 as irrebuttable, there is a real danger of bias following the court’s prejudgment of the evidence of PW1 as being true at the close of the prosecution’s case as opposed to the mandatory provisions of Section 182A(1) of the Criminal Procedure Code, which require the court to consider all the evidence before it at the conclusion of the trial to decide whether the prosecution has proved its case beyond reasonable doubt against an accused person.

Under the circumstances, the applicant is entitled to prayers (1), (2) and (3) of the notis usul herein. In the alternative, for the submissions which follow, the applicant is entitled to an acquittal and discharge with unconditional release.

‘The expression law in Art 5 (1) of the Constitution included written law and the common law of England, i.e. the rule of law and all its integral components and in both its procedural and substantive dimensions. It is also clear from the authorities that it is a fundamental right guaranteed by Art 5(1) that a person’s life or personal liberty may not be deprived save in accordance with the state action that is fair both in point of procedure and substance.’

‘In Lee Kwan Who v PP [2009] 5 MLJ 301, this court held that the fundamental liberties expressed in the constitution must be read in a prismatic fashion to discover the right submerged in the wider concepts expressly guaranteed. This court also affirmed as accurate the following statement of the law by Edgar Joseph Jr. J (as he then was) in [TAB 11]: PP v Choo Chuan Wang [1992] 2 CLJ 1242

‘Article 5(1) of our Constitution does imply in favour of an accused person the right to a fair hearing within a reasonable time by an impartial court established by law. It follows that if an accused person can establish a breach of this right then, in the words of Sandhawakua CJ in Madheshwardhari Singh v The State A1R 1986 (Pat) 324, he would be entitled to an unconditional release and the charges leveled against him would fall to the ground. We therefore accept that the right to a fair trial is a constitutionally guaranteed right.’

This Federal Court has given its stamp of approval to what was said in Choo Chuan Wang in Lee Kwan Woh and Shamin Reza.

In our case, there is clear evidence of prejudgment and bias. It must follow from this, in view of what was said in Choo Chuan Wang, the applicant is in fact entitled to an unconditional release with the charges leveled against him falling to the ground.

The issue we raised is my Lord, something which has not been raised before. Something that your Lordship must and should take time to carefully consider and ought not to dismiss it. We pray that this application be allowed in terms in the notis usul. Much obliged.

MY: My Lord, before I answer my learned friend I want to make an observation. This is the 3rd time that my learned friend is applying to recuse your Lordship. I think by itself it should be fine for this case to be in the Malaysian Book of Record because I know not of any other case where the defence has persistently apply for the judge to be recused on whatever ground whether with merits or not [] YA, this application is filed by my learned friend to have your Lordship to be recused on the ground that you have prejudged the case on the accused and therefore you are bias against him. The applicant also apply for the case to be heard de novo and the other two prayers plus the fourth prayer for any order which this Honorable Court deems fit.

The basis of the application is found in the affidavit of Dato’ Seri Anwar Ibrahim supporting this motion. If I may refer to paragraph 5 of the affidavit and read it:

‘Nothing came out from the lengthy cross-examination of PW1 or from the evidence of other prosecution’s witnesses that could suggest what PW1 had told in his evidence was something which was not probable. I find PW1’s evidence remains intact. He had truthfully and without embellishment or exaggeration in his evidence narrated in minute detail how he was sodomised by the accused on the date and at the place stated in the charge. I find him to be a truthful witness and his evidence is reliable and if accepted would establish all the facts required to prove the charge against the accused.’”

Then after referring to Looi Kow Chai & Anor v PP and the two cases which my learned friend produced in his submission, at para 8:

‘He had truthfully and without embellishment or exaggeration in his evidence narrated in minute detail how he was sodomised by the accused on the date and at the place stated in the charge. I find him to be a truthful witness and his evidence is reliable and if accepted would establish all the facts required to prove the charge against the accused.’

My Lord, this application obviously is based on one this passage, one paragraph out of 180 paragraphs contained in your ruling at the close of the prosecution case. It’s a 68 pages judgment with 180 paragraphs and my learned friend is relying on one paragraph to say that you had prejudged the case.

When those words in one passage or one paragraph is taken out of context and considered in isolation it may give the wrong impression to the public or the uninformed public or to the [] that the judge in fact had prejudged the case against the accused. When it is done this way taking out the context then it is difficult for us to believe or to accept that this application is made bona fide. It is difficult even to accept that this application is made out of genuine belief that your Lordship has been biased against the accused.

Now, the question is, is there a prejudgment? Or had your Lordship been bias? The answer can be found in your own judgment at the last page, page 68, paragraph 183,

“Based on all the above reason I find the prosecution through the evidence of PW1 which had been corroborated in material particulars had proved all the facts required to establish all the ingredients of the charge. I find a prima facie case not a beyond reasonable doubt case as suggested by Dato’ Seri Anwar Ibrahim in his affidavit as defined under S. 180 of the Criminal Procedure Code had been made out against the accused. Therefore the accused is called to enter his defence.”

May I my Lord refer to S. 180 (4) of the Criminal Procedure Code,

“(4) For the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction.”

So what your Lordship is saying is there is credible evidence. At this stage, at the close of the prosecution case there is credible evidence establishing all the facts required to prove all the ingredients to bring home the charge under S.377B of the Penal Code. Nothing less, nothing more. That’s all. Credible evidence.

And to see whether or not that passage refered to by Dato’ Seri Anwar Ibrahim in his affidavit amounted to a prejudgment we must look into the context it appear. It is without doubt my Lord those passage appear during discussion whether or not PW1 is a credible witness and his evidence is credible evidence.

If I may invite your Lordship to paragraph 104 of your judgment…Before that, under the subheading “At The End Of The Prosecution Case”, this is after your Lordship had set out all the evidence, relevant evidence adduced by the prosecution witnesses,

“At the close of the prosecution case what was needed to be proved was a prima facie case. Under S. 180 (4) of the CPC a prima facie case is said to be made out against the accused when the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction as held in the case of Looi Kaw Chai.”

At paragraph 105, you set the brief charge of the accused.

At paragraph 106 this what your Lordship wrote,

“The prosecution relied on PW1’s evidence to prove its case where PW1 testified he was at the place mentioned in the charge and while he was there the accused introduced his penis in PW1’s anus until the accused ejaculated.

This evidence from PW1 if accepted clearly establish a prima facie case for an offence of carnal intercourse against the order of the nature as stated in the charge.

So the question here is whether PW1 was a credible witness and whether his evidence as to what transpired between him and the accused in the unit 11-5-1 was true and could safely be relied on. If the court finds PW not true, not to be credible then the accused had to be acquitted without having to look for corroborated evidence to support PW1’s evidence.”

So what follows is beyond discussion in evaluating whether or not PW1 is a credible witness and whether or not his evidence could be relied in the sense that he is credible.

If I may refer to paragraph 109,

“En. Karpal submitted while PW1 insisted that the incident occurred without his consent PW1 never tried to escape although he had ample opportunity to do so. PW1 instead followed all the instruction given by the accused. PW1’s action of eating and drinking after the incident, did not try to get help from the occupier of unit 11-5-2, did not complain to the security guard, did not immediately lodge police report and attended PKR’s function the next day did not reflect the attitude of someone who had been sodomised by the accused. Therefore according to the counsel PW1 had lied when he said in his police report the incident occurred without his consent thus PW1’s entire evidence could not be believed and must be rejected. Learned counsel urged the court not only to reject PW1’s evidence but to also direct the Public Prosecutor to charge PW1 under S. 195 of the Penal Code. In other words what the defence was saying since PW1 testified that the sodomy performed on him was without his consent but the same time he failed to run away from the place of incident, failed to ask for help from the occupier of the unit 11-5-2, did not complain to the security guard, did not make police report immediately – it follows that PW1 not only had lied when insisting he did not consent to being sodomised but he also fabricated false evidence with intention of procuring the accused’s conviction for an offence of sodomy which never took place.”

From paragraph 104 until paragraph 125 is all discussion whether or not PW1 is a credible witness. 21 paragraphs in all, just the evaluation on his evidence.

At paragraph 114 after commenting the failure and all that, your Lordship wrote this,

“Based on those facts and circumstances, PW1’s failure to run away, to complain to people in unit 11-5-2, to lodge police report immediately is understandable. It could not be the basis to find PW1 to be an incredible witness.”

Then at paragraph 115,

“After finding that PW1’s evidence is not affected the next question is whether the evidence itself [] PW1 showing that the accused introduced his penis into Pw1’s anus could be accepted as credible and as such it is safe for the court to rely on it to call the accused to enter his defence.”

The crucial passage is at paragraph 121,

“In our case beside there was an opportunity for the offence to take place the evidence of PW1 showed the offence did in fact occurred. PW1 was subjected to lengthy cross-examination. PW1 state vastly and consistently describe in detail how the accused introduced his penis into PW1’s anus with the aid of lubricant. Nothing came out from the lengthy cross-examination of PW1 or from the evidence of other prosecution’s witnesses tat could suggest what PW1 had told in his evidence was something which was not probable. I find PW1’s evidence remains intact. He had truthfully and without embellishment or exaggeration in his evidence narrated in minute detail how he was sodomised by the accused on the date and at the place stated in the charge. I find him to be a truthful witness and his evidence is reliable and if accepted would establish all the facts required to prove the charge against the accused.”

This passage itself would show that it is not conclusive because your Lordship said “I find him to be a truthful witness and his evidence is reliable and if accepted would establish all the facts required to prove the charge against the accused.”

Then at paragraph 125,

“It was contended by the defence that PW1 was not a truthful witness and his evidence should be rejected outright and the court need not have look further for further evidence as I had stated earlier in the judgment. I found PW1 to be a credible witness. There is nothing improbable about his evidence. His evidence was reliable. Therefore the next question to be decided is whether there is evidence corroborative of his evidence.”

With all those paragraphs it will appear that this discussion about PW1 being truthful and all that, first it is in response to the submission suggesting that this witness is not truthful. When the defence said this witness has lied, has fabricated evidence and not a truthful witness and the judge hold otherwise so what is the judge supposed to say? What is the opposite of not truthful? But whatever it is still, it is an evaluation to arrive at whether or not he is credible and that evidence is also credible. And that is reflected in paragraph 125.

It will appear if ever anybody to think that the phrase “beyond reasonable doubt” is there actually eventhough it is not written, it is must be in reference to beyond reasonable doubt evidence. Because your Lordship had never said beyond reasonable doubt case but you have subjected all the evidence of the witnesses, their credibility and their version to the maximum evaluation and this is something that Looi Kaw Chai and all the cases before it had said that the judge is required to do.

May I first refer to the case of Looi Kow Chai & Anor v PP [2003] 2 MLJ 65, tab 12 of the first bundle, J Gopal Sri Ram other than referring to the case my learned friend referred to, PP v Ong Cheng Heong and PP v Saare Hama & Anor also refered to this particular that can be found in the last paragraph of page 84 case of PP v Mohan Singh,

“Lastly, in Public Prosecutor v Mohan Singh [1999] 4 CLJ 620; Pendakwa Raya v Mohan Singh a/l Lachman Singh [1999] MLJU 218, Wahab Patail J expressed his view upon the approach to be taken by a court when deciding whether the prosecution had made out a case under s 180 of the CPC. He said:
I conclude then that the prosecution must be in a position to say:
(a) at the end of the prosecution case, that on the basis of the evidence it has advanced, and tested by cross-examination, it has advanced evidence beyond reasonable doubt in respect of all the elements of the charge;” and to this Gopal Sri Ram J agreed.

And then at page 83 of the same judgment at para D, the court refered to the case of Public Prosecutor v Dato’ Seri Anwar Ibrahim (No. 3) [1999] 2 MLJ 1,

“Augustine Paul J made the following observation which has since received approval sub silentio from the Federal Court (see [2002] 3 MLJ 193):
A prima facie case arises when the evidence in favor of a party is sufficiently strong for the opposing party to be called on to answer. The evidence adduced must be such that it can be overthrown only by rebutting evidence by the other side. Taken in its totality, the force of the evidence must be such that, if unrebutted, it is sufficient to induce the court to believe in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts existed or did happen. As this exercise cannot be postponed to the end of the trial, a maximum evaluation of the credibility of witnesses must be done at the close of the case for the prosecution before the court can rule that a prima facie case has been made out in order to call for the defence.”

and that is exactly what your Lordship had done, subjecting the evidence to maximum evaluation to determine the credibility of the witnesses. I did not see anything wrong with the use of the word “truthful”.

And my Lord, the passage that I read from the judgment of Wahab Patail J is not something new. In the Federal Court of Tan Boon Kean v PP [1995] 3 MLJ 514, Azmi J had occasion to talk about what is a prima facie case and what is prima facie evidence.

At paragraph E of page 529 this is what the judge had to say,

“As distinct from a prima facie case, Sarkar on Evidence at p 45 defines ‘prima facie evidence’ as ‘evidence which, if accepted appears to be sufficient to establish a fact, unless rebutted by acceptable evidence to the contrary. It is not conclusive’.

This is what Vincent Ng J say. It is not conclusive. Do you now why it is not conclusive? In that case it says “in the absence of any evidence to the contrary”. That means without more at this stage can you say? So the judge went on further and said,

“‘Prima facie’, means on the face of it or at first glance. So, ‘a prima facie case’ is a ‘ case which is sufficient to call for an answer. While prima facie evidence is evidence which is sufficient to establish a fact in the absence of any evidence to the contrary, but is not conclusive’ (see the Oxford Companion to Law at p 987). ‘Prima facie evidence’ is evidence where ‘a party’s evidence in support of any issue is so weighty that no reasonable man could help deciding the issue in his favour in the absence of further evidence’ (see Cross on Evidence(2nd Ed) at pp 24 and 25; and also per Wee Chong Jin CJ in Gan Soo Swee & Anor v Ramoo [1969] 1 MLJ 59 at p 61). In our view, under s 180, a prima facie case is one which is established by sufficient beyond reasonable doubt evidence and can be overthrown only by rebutting evidence adduced by the other side, so as to cast a reasonable doubt on the prosecution case as to the guilt of the accused.”

Even the last sentence there it appear that at the close of the prosecution case you have beyond reasonable doubt evidence to prove the guilt which can only be rebutted by other evidence which cast doubt to that guilt. So what is wrong with that?

Saying that the facts proving all the ingredient of the charge had been proved by beyond reasonable evidence is different from saying that the case had been proved beyond reasonable doubt. And all the discussion from paragraph 104 to paragraph 125 is all to determine whether or not there is evidence that is free from doubt which if accepted will prove the facts needed to constitute all the ingredients of the charge under S.377B Penal code.

The question is if my learned friend says that “No”, it simply means the case had been proved beyond reasonable doubt. Even at this intermediate stage even if that is the case, it is my submission that it is still not wrong. I said this because the evidence that constitute a prima facie case will be the same evidence that after having heard the defence the court will rely on whether or not the court can say the case have been proved beyond reasonable doubt. It is the same evi, nothing more. The prosecution is not going to adduce anymore evidence after that. It is the same evidence.

So what the court in Looi Kaw Chai said is this, “Am I prepared to convict him if he remains silent?”. Meaning you must have beyond reasonable doubt evidence proving all the facts needed to prove all the ingredient of the charge and if he remains silent this evidence that I say amounted to a prima facie case is the same evidence that will be converted to prove beyond reasonable doubt.

The only reason the court says you have to postpone it, “Don’t say it that your case have been proved beyond reasonable doubt” is because there are 2 stages in the trial, the prosecution case and the defence case. If the defence adduce evidence then you wait until the end of the defence and then consider the prosecution case in the light of the defence evidence and see whether or not this prima facie has achieved proof beyond reasonable doubt. But in the case where the accused elected to be silent, what happen? What kind of evidence that we must have in order to convict him if he remains silent? It is that evidence, beyond reasonable doubt evidence which become proof of beyond reasonable doubt case.

If I may invite your Lordship again to Looi Kaw Chai starting from page 78 the last paragraph where Gopal Sri Ram J refers to the majority judgment in Arulpagasan , a 7-man-panel in deciding what amounts to a prima facie case. The standard of proof in a prima facie case and the minority judgment handed down by Edgar Joseph FCJ.

At page 79, paragraph C this is what the court says,

“We find that a careful reading of the majority view and the minority view respectively in Arulpagasan in reality and for all practical purposes produces the same result.”

What did the majority view says in Arulpagasan? At page 80 the judge referred to the judgment of Edgar Joseph FCJ what in Arulpagasan and referring to page 52 this is what he said,

“Furthermore, if the onus on the prosecution at the close of its case, is to establish a ‘mere prima facie case’, the test to be applied is a minimal evaluation of the prosecution’s evidence to ensure that it is not inherently incredible (see Haw Tua Tau v PP). Whereas, if the onus on the prosecution at the close of its case, is to establish a case ‘beyond all reasonable doubt’, then the test to be applied to the prosecution’s evidence is a maximum evaluation of the prosecution’s evidence, which calls for ‘a more rigorous test of credibility’ (per Lord Diplock in Haw Tua Tau at p 54G), in order to answer the question: if there is no more evidence, has the prosecution proved its case beyond all reasonable doubt? (See PP v Fong Ah Tong & Anor [1940] MLJ 240). (Emphasis added.)”

This is what Edgar Joseph FCJ said. If there is no more evidence. So at close of the prosecution case this is what your Lordship has to ask : if there is no more evidence, has the case been proved beyond reasonable doubt? Your Lordship didn’t say it but they said your Lordship says it. But if it is true you said it then what Gopal Sri Ram J said at paragraph F is this,

“It would appear that a comparison between the passage earlier quoted from the minority judgment of Mohd Azmi FCJ and that of Edgar Joseph Jr FCJ, reveals no serious difference of opinion between them as to rigour with which the prosecution’s evidence is to be examined. Hence, it is our respectful view that the difference of opinion, if any — and we hasten to add that we are unable to see any — between the majority and minority in Arulpragasan is not one of substance but of mere form.”

So he is not saying that Arulpagasan is wrong. Of course he referred to the case of Dato’ Mokhtar Hashim v PP.

With regard to the cases that my learned friend referred to i.e. PP v Ong Cheng Heong [1998] 6 MLJ 678 and PP v Saare Rama & Anor [2001] 4 MLJ 480 this is what the judge has to say at paragraph H of page 84.

“Although we might have expressed the test in different words, we agree with the formulation of the test in Ong Cheng Heong and Saare Hama. In our judgment, these two cases accurately set out the approach that is to be adopted under ss 173(f) and 180 of the CPC at the conclusion of the prosecution’s case.”

So he didn’t say it. This is how I said it but it is formulated differently in the other two cases and both are actually the same but the standard of proof at the close of the prosecution case is further explained in the case of Balachandran v PP [2005] 2 MLJ 301 which was decided 2 years after Looi Kaw Chai & Anor v PP. May I just refer to holding no. 5 at page 303 of the judgment,

“As the accused can be convicted on the prima facie evidence it must have reached a standard which is capable of supporting a conviction beyond reasonable doubt. However it must be observed that it cannot, at that stage, be properly described as a case that has been proved beyond reasonable doubt.”

See? The court is playing with the word. This is what it actually is. But you don’t describe it that way. Why? Because,

“Proof of beyond reasonable doubt involves two aspects. While one is the legal burden on the prosecution to prove its case beyond reasonable doubt, the other refers the evidential burden on the accused to raise a reasonable doubt. Both these burdens could only be fully discharged at the end of the whole case when the defence has closed its case. Therefore a case can be said to have been proved beyond reasonable doubt only at the conclusion of the trial upon a consideration of all the evidence adduced as provided by s 182A(1) of the CPC. That would normally be the position where the accused has given evidence.

However, where the accused remains silent there will be no necessity to re-evaluate the evidence in order to determine whether there is a reasonable doubt in the absence of any further evidence for such a consideration. The prima facie evidence which was capable of supporting a conviction beyond reasonable doubt will constitute proof beyond reasonable doubt (see para 23).”

So it said the standard is that high, it’s beyond reasonable doubt but you don’t describe it as such. That’s all.

In our case, we are saying that your Lordship at no time especially state that the case has been proved beyond reasonable doubt. At the most after being subjected the witnesses and the evidence to maximum evaluation the most you can say that your Lordship had hold that there is beyond reasonable doubt evidence that the facts consisting the ingredients have been proved.

Just as a matter of completeness, YA may I then refer to two other cases? The first case is PP v Saimin & Anor [1971] MLJ 16. In PP v Saimin & Anor, the court says in order to convict the version of the prosecution must be true even if he remains silent. You must say it is true even at that stage. How can the court can say that the prosecution must be true if he holds that the witness is not truthful? If I may read at tab 3, page 17, paragraph F at the left. This is what Sharma J has to say,

“A conviction cannot be sustained even if the court is satisfied that the prosecution story “may be true” unless and until it is found that the prosecution story “must be true”.”

So this finding must be made at the close because the accused may want to remain silent. And the court can only convict if he says that this, the story is true. Would that conflict with what my learned friend is saying? The answer can be found in Mah Kok Cheong v R [1953] 19 MLJ 46, tab no.2.

What is the burden on the defence? The burden is to raise reasonable doubt as to the truth of the prosecution story. If I may read what Spenser Wilkinson J has to say at page 47,

“There are really three classes of criminal cases to be considered:—
(a) The ordinary case where direct or circumstantial evidence is given to prove that the accused committed the offence charged. In such cases if the defence raises a reasonable doubt as to the truth of the prosecution case or as to the accused’s guilt there will be an acquittal, and if no such doubt is raised, a conviction.”

So that is what they have to do: to raise a reasonable doubt as to the truth or the accused’s guilt, meaning at the conclusion of the prosecution case the court must be able to say in the absence of any of the contrary he is guilty. The story must be true. Then it’s their duty to raise doubt as to the truth of that version of the prosecution or to the guilt of the accused.

At page 47 on the right hand column, the second last paragraph,

“I thought the decision in Mohamed Yatim’s case had made the position clear, but from various cases recently before me it does not appear to have done so. I must, therefore now repeat that in ordinary criminal cases such as perjury, forgery, cheating and so on where no question of unlawful possession of property arises all discussion as to what might reasonably be true or what is consistent with innocence are both irrelevant and misleading. Almost every defence put forward by an accused is consistent with innocence or it would not be put forward; nor would it be a very good defence if it could not reasonably be true.

But whatever may be the defence to a criminal charge the sole question which a Subordinate Court has to ask itself at the conclusion of the trial is — Does the defence raise a reasonable doubt as to the truth of the prosecution case or as to the accused’s guilt? I say “the sole question” advisedly because in this country the accused will not have been called on for a defence at all unless the prosecution has first proved a case. In this respect our criminal procedure differs from that in England and this difference makes it necessary to apply with caution the English decisions which almost all deal with trials by jury.”

Again I would like to say this, it is our submission that at no time anybody who read your judgment or your ruling, the whole of it in particular where you deal with the evidence of PW1 and his credibility from paragraph 104 to 125 that your Lordship says that this must be true and therefore that’s the end of it. And then at paragraph 183 all your Lordship says is that : based on all this a prima facie case as defined under S.180(4) of CPC has been proved. That’s all.

Now, I’m coming to the 2nd part of my submission, “Bias”. The second volume. My learned friend is saying that your Lordship is bias therefore he couldn’t have a fair trial because they are prejudged. And we are saying that you have not prejudged. Whatever your ruling is your ruling, a ruling made at the close of the prosecution case. And you know there could be evidence on behalf of the defence to raise doubt as to the truth of the prosecution case or as to the accused’s guilt.

There could be evidence adduced on behalf of the defence to raise doubt as to the truth of the prosecution’s case. In the case of Che Minah binti Ramli, the last case in our second bundle, if I may refer to page 207 first, holding number 3:
“It was an acceptable proposition to say that a judge’s impartiality is presumed and any party seeking disqualification must establish the circumstances and situations to justify the disqualification of the judge. There is a strong presumption of judicial impartiality. The standard of reasonable apprehension of bias must necessarily refer to an apprehension based on serious grounds. Each case must therefore be examined contextually and the inquiry would be based entirely on the facts. The appeal related to the question of leave and the issue on the fatwa (edict) and its ramifications had no role to play at all (para 27(a) & (b).”
Then, at page 219 of the report, para 31, the Court of Appeal’s judge referred to the case of Liteky v US [1994] 114 S Ct 114 which at p1155, Scalia J, defined the words ‘bias’ or ‘prejudice’ in this way:
“The words (bias or prejudice) connote a favourable or unfavourable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved or because it rests upon knowledge that the subject ought not to possess (for example, a criminal juror who has been biased or prejudiced by receipt of inadmissible evidence concerning the defendant’s prior criminal activities), or because it is excessive in degree (for example, a criminal juror who is so inflamed by properly admitted evidence of a defendant’s prior criminal activities that he will vote guilty regardless of the facts).”
When witness’s evidences are corroborated in every step of the way, in material particular: the witness said I was working with Anwar, then Ibrahim Yaakob said yes. He said he was asked to go to the unit of the condo on the said date and he was asked to send documents – Ibrahim Yaakob confirmed that. He said he was there in fact, in the vicinity – the CCTV confirmed that. Then he was said he was sodomised – the medical and the chemist report confirmed that.
So what is so wrong with your finding that you have been alleged to act biased and prejudge? That is the only logical conclusion. You are justified to say that this witness is truthful, because he is corroborated by independent witnesses, and one of whom is DSAI’s chief of staff.
Then, back to the report at page 224, para 47:
“There is no need to reaffirm the well-settled principle of the impartiality of the courts of justice. This principle has been a matter of common knowledge across the common law world over the past decade or so. The fundamental belief that those who adjudicate must always do so without bias or prejudice has withstood the test of time. Cory J, in R v S (RD) [1997] 3 SCR 484, at para 106 quoted R v Bertram [1989] OJ No 2123 (QL) (HC) when defining bias or prejudice: that definition reads as follows (and I quote): a leaning, inclination, bent or predisposition towards one side or another or a particular result”.
That means (in defining the word bias), in advance, from the very beginning, your Lordship is influenced to decide in favour of a certain party, irrespective of the evidence or the law. And that is not the case; you decided against us or for us. So my learned friend must show in this instance, especially in this particular application before your Lordship.
If I may, refer to the case of Hock Hua Bank. In that case, the judge had already said this, during the proceeding that, the defence is incredible at one point of time , and they apply to have him recused, and yes, he recused himself, not because he deemed himself to be bias, but because he wanted to avoid allegation against himself. And when appeal, both Gopal Sri Ram and Ian Chin J said it is wrong, there he actually said that, for deciding a mareva injunction which Gopal Sri Ram said it is okay for him to look at the merit of the case. Federal Court said that it is not bias, because something will happen in the course of the trial after hearing the actual defence, he may change his mind. And that happens all the time.
And then we have the case of Alur Janggus, there are two cases of Alur Janggus. [read facts]. At both courts, both quorums said that there was no bias.
May I just refer to Hock Hua Bank YA, page 225 of the judgment, in which they were quoting this from another case: R v Liverpool City Justice, ex p Topping [1983] a ALL ER 490:
“We conclude that the test to be applied can conveniently be expressed by slightly adapting the words of Lord Widgery CJ in a test which he laid down in R v Uxbridge Justices, ex p Burbridge ( The Times, 20 June 1972) and referred to by him in R v McLean, ex p Aikens (1974) 139 JP 261 at p 266: would a reasonable and fair-minded person sitting in court and knowing all the relevant facts have a reasonable suspicion that a fair trial for the applicant was not possible?”
This is not the person who sitting outside the court, and who was informed, or just read the newspaper or just being confronted with just that passage. This is a reasonable person sitting in court and knowing all the relevant facts: and all the relevant facts were those paragraphs that I referred to before, not reading one paragraph in isolation.
And in this case also, they referred to few English cases, at page 227 para C onwards:
“To use the words of Darling J in R v Sharman (1930) 9 Cr App Rep 130; ‘if the appellants’ and I may add, or parties, ‘are to be allowed to select the judges who shall hear their appeals,’ and I may also add, or cases, ‘the business of the court could not be carried out’.
In R v Lovegrove [1951] 1 All ER 804, Lord Goddard CJ, giving the judgment of the court (Lord Goddard CJ, Cassels and Lynskey JJ) said, at pp 804 and 805 (since it is a short judgment I have reproduced it in full):

The applicant was convicted before Lynskey J, at Bedford Assizes, and his application for leave to appeal, which has been refused by the single judge, now comes before this court of which Lynskey J is a member. It has undoubtedly been the practice recently, if the trial judge happens to be sitting in the Court of Criminal Appeal, to adjourn the case, but the question is whether that practice need be followed in all cases in future.
This matter was considered many years ago, and it was pointed out that in civil cases before the Supreme Court of Judicature Act 1873, when there was no Court of Appeal and appeals were heard by judges of the three common law courts in banc, it was quite a common practice for the judge before whom the trial had taken place, and whose ruling, indeed, might be impugned, to sit as a member of the court, even, in some cases, where he had sealed the bill of exceptions. This matter was considered in R v Sharman (alias Sutherland) (1913) 9 Cr App R 130, where an application for an adjournment was made on behalf of the appellant on the ground that Ridley J, who tried the case, was presiding in the Court of Criminal Appeal. Darling J, giving the judgment of the court, said (9 Cr App R 130):
‘I think this application ought not to be granted. After the assizes, appeals come from all parts of the country; and if appellants are to be allowed to select the judges who shall hear their appeals, the business of the court could not be carried on. Before the days of the Judicature Act, when the Courts of Queen’s Bench, Commons Pleas and Exchequer sat in court to hear appeals (of course, not criminal appeals), it was the usual practice for the judge who tried the case to be present.’YA: Takpelah, you already cited the principle kan, you don’t need to go to the facts. That’s the position in England lah.MY: Yes, but when we are talking about bias, we are talking about []. Whether England, US, Malaysia or India. And even in that situation, the court did not say that it is bias, and need a fair hearing.
So all in all My Lord, if I may say is this, I have observed, that this application is without merit. This application’s bona fide is questionable. And I want to say this: that this application is made to delay and derail the trial. DSAI is called to enter the defence. He must seize this opportunity to give his version of the story, which he happily gives to member of the public around the country. Now, this is his chance to give your defence under oath. So that he will be subject to cross examination just like the prosecution’s witnesses. After all, cross examination is the test of truthfulness. It is our humble submission my Lord, that this application was without merit and should be dismissed. There is no prejudgment and there is no bias on the part of your Lordship, thank you.
YA: Yes, Mr. Karpal?
KS: The allegations by my learned friend that we are delaying the trial without any substance, is a serious matter. In fact, it is amount to contempt of court. Who is delaying the trial? Is it the defence or the prosecution? That is what your Lordship ought to ask. 25 witnesses were offered to us. The witnesses offered must be in court. You can’t offer witnesses who are not in court. We have been given an opportunity to interview these witnesses in court.

What had happened in the last few weeks? Prosecution should produce those witnesses to us for interview. DSAI cannot be compelled to give evidence, his evidence is alibi, unless and until he is given the opportunity to interview the witnesses offered to us. It is not this application which delaying the trial. On the other hand, it is the prosecution which unable to produce witnesses to be interviewed, except for 5 witnesses, who are not material. What about the Prime Minister? What about his wife? Is there any arrangement up to now My Lord for these two personalities to be present here in court to be interviewed for the purpose of getting the defence ready and DSAI to give his evidence?
Let it not be forgotten My Lord that DSAI is not afraid to be in the box, in fact in this trial, he had gone into the box. There is no question that he’s being afraid. What he wants is only a fair trial. Is there any fair trial? That is the question that your Lordship needs to consider. My learned friend made complaints about this being the third application to recuse your Lordship. It doesn’t matter if hundred applications. The point is whether the application has merit.
My learned friend had given a lecture; I think he ought to go to university for that purpose, not here. He talked about beyond reasonable doubt and prima facie case. I don’t wish to lecture your Lordship. What is important is for you to look at the point in hand. My learned friend refers to paragraph 183 of your judgment. What is forgotten are pages 43-44. Your Lordship had found that PW1 is a truthful witness. We’ve given at length in the proposition which your Lordship did not consider. Let’s look at it again, Looi Kow Chai is in tab 2 of our bundle,. What my learned friend had obviously forgotten, at page 85 itself:
“If this passage is meant to suggest that the evidence led by the prosecution must receive maximum evaluation, then we would agree with it. But if what is meant is that a court ought to go further and determine whether the prosecution at the end of its case has proved the case against the accused beyond a reasonable doubt, then we find ourselves in disagreement with the learned judge in that case. In our view, subjecting the evidence of the prosecution to maximum evaluation to determine if the defence is to be called does not mean that the prosecution has to prove its case beyond a reasonable doubt at this intermediate stage.”
My learned friend was then referred to what was in PP v DSAI, can I read the last part of it. [read] – ‘at the close of the whole case’.
I come back to the main [] of the application. Your Lordship in fact did not apply your Lordship mind to it. This is in fact was in the case of Looi Kow Chai

page 84. I read this:
‘In Public Prosecutor v Ong Cheng Heong [1998] 6 MLJ 678 at p 691, Vincent Ng J expressed his view on the amendment to section:
Thus, to me, maximum evaluation simply means evaluation, on a prima facie basis, of each and every essential ingredient of the charge as tested in cross-examination’.
My Lord, if prima facie basis, your Lordship cannot tell the truthful of a witness. In fact, what has your Lordship done is invalid.
‘Thus, to me, maximum evaluation simply means evaluation, on a prima facie basis, of each and every essential ingredient of the charge as tested in cross-examination. In other words, maximum evaluation connotes quantitative rather than qualitative evaluation of the evidence; with focus more on the evidential burden in terms of evidence led rather than the persuasive burden in terms of qualitative degree of proof.
What then constitutes a ‘prima facie case’? ‘Prima facie’ means on the face of it or at first glance. ‘
So your Lordship has acted beyond this expression.
“To me, in the light of Act A979, perhaps the most appropriate definition of a ‘prima facie case’ could be found in the Oxford Companion of Law (p 987),

which has it as:
‘A case which is sufficient to call for an answer. While prima facie evidence is evidence which is sufficient to establish a fact in the absence of any evidence to the contrary, but is not conclusive.’
It would follow that there should be credible evidence on each and every essential ingredient of the offence. Credible evidence is evidence which has been filtered and which has gone through the process of evaluation. Any evidence which is not safe to be acted upon should be rejected.”
By saying that PW1 is a truthful witness, your Lordship in fact had accepted his evidence, which your Lordship ought not to do at this intermediate stage because that evidence is not conclusive. By saying that the witness is truthful, the evidence is true, completely shut up the defence. It is completely nullifies the amendment to the Criminal Procedure Code; Section 182A (1).
I will continue reading what Vincent Ng J said in Ong Cheng Heong.YA: I think you had quoted that before in your submission right?KS: (he continues reading)
“Although we might have expressed the test in different words, we agree with the formulation of the test in Ong Cheng Heong and Saare Hama”.
I did not wish to repeat it again. So it is in our submission that your Lordship had completely shut up the defence by deciding that PW1 is the witness of truth. And that is the position My Lord, the bias is obvious. We say My Lord that your Lordship had gone beyond by what had given by the law.
Para 183 does not, and cannot completely erase what is in page 43-44. Your Lordship had clearly gone to the conclusion that PW1 is the witness of truth. I did not wish to go to cases in which my learned friend had referred in question of bias. Of course, impartiality of a judge is presumed, but this is one case where that presumption can be rebutted. In fact, destruction is placed by your Lordship yourself in coming to the conclusion that PW1 is the witness of truth. And that destruct the entire case by the prosecution. We say under these circumstances, our application ought to be accepted. Much obliged.YA: Kita stand down for a while.
[10.34] Stand down.
[11.36] Kes dipanggil semula.MY: Kes untuk keputusan, YA.YA: Saya mendapati permohonan ini tidak mempunyai sebarang merit. Oleh itu, permohonan ini ditolak.KS: My Lord we wish to appeal to this decision. We are asking for stay pending appeal to the Court of Appeal. We want to give the authority of the case of Rowstead Systems Sdn Bhd. In fact, we’ve made similar application before your Lordship, and your Lordship had relied on this case.YA: So DPP?MY: YA, I’m objecting to this application, because your decision is not appealable. Rowstead is no longer [] now, and the fact can be distinguish. In the case of PP v DSAI, this is the decision of the Court of Appeal. This is the appeal to recuse your Lordship from this trial.YA: The second recusal?MY: Yes, the second recusal. There are two judgments, one by Low Hop Bing J, and the other one is by Malik J. May I just invite your Lordship to the last page of the judgment of Malik J [read]. Then to Low Hop Bing J at page 8 para 19:
“In the instant appeal, the ruling of the learned trial Judge in dismissing the accused’s second recusal application was made in the course of the trial which does not finally dispose the rights of the accused and is therefore not a decision within the ambit of Sec. 3 read with Sec 50(1)(a). It is only the outcome of the trial that would have the effect of finally disposing of his rights.”
And the conclusion of the decision:
“On the foregoing grounds, we unanimously sustained the preliminary objection and dismissed this appeal in limine.”
So, what we are saying is this. Your Lordship can only grant stay, if there will be appeal appropriate pending by the court. Once the Court of Appeal said that this kind of decision is not appealable, there won’t be appeal pending properly before the court, because the court has no jurisdiction to hear.
As far as Rowstead concerns, if I may just remind this Honorable Court, of the decision of Bhalip Bagwant Singh I think in 1999, when he talked about what happen when there is a conflict of decision of concurrent courts. It was held there, the latest decision overruled the earlier decision. So Rowstead in decided in 2005, and this one is decided in 2011. So I pray for the stay not to be granted and we proceed with the defence stage.KS: My Lord, the case referred by my learned friend did not refer at all to Rowstead. This is application pertinent of the trial. I read what happen in Rowstead:
“The defendant was owned by the PAS-led Government of the state of Kelantan. The defendant had applied for the learned Judicial Commissioner at High Court (‘the JC’) to recuse himself from hearing the case involving the defendant. It was alleged that due to the JC’s previous dealings with the United Malay National Organisation (UMNO), there would be a possibility of bias if the learned JC were to hear the case. The learned JC ruled that there were no merits in the application and therefore decided not to recuse himself from hearing the case as he completely believed he could conduct the case free of any bias whatsoever. Against that decision, the defendant had lodged an appeal to the Court of Appeal. The defendant applied for a stay of the proceedings of the matter pending the decision of the appeal. The stay was not applied at the High Court but instead the application was made only at the Court of Appeal. The issue was whether the original application could be entertained by the Court of Appeal. Counsel for the applicant submitted that this court had the jurisdiction to hear the application by virtue of s 44 of the Courts of Judicature Act 1964. The second issue was whether the stay should be allowed.”
May I continue reading holding 3 under held:
“This case came under the category of non-automatic disqualification. Hence there was a need to prove whether the element of bias exists. It has to be objectively decided, based on all the facts and circumstances of the case. The more important question to be asked was whether it was proper for such decision to be made by the presiding judge against whom bias has been alleged. When a party alleges that a presiding judge is biased, and if the presiding judge himself decides he is not, such decision would infringe the rule of natural justice in that ‘one should not be a judge in one’s own cause’. This situation would come within the meaning of special circumstances (see para 13). Also in the event that a stay a proceedings was not granted and the learned JC be allowed to proceed with the hearing of this case, it would result in a waste of time and effort by all persons involved since if the Court of Appeal allows the appeal, the whole proceedings conducted by the learned JC would have to be completely expunged. In the circumstances it would be more expedient to allow a stay of the proceedings until the hearing of the appeal has been completed (see para 14).
So under this circumstance, we pray that your Lordship be bound by Rowstead. It is a Court of Appeal decision. Your Lordship had once before using this authority.YA: But before the case of DSAI’s decision came out. Their objection is now on different issue. They said that there are no appeal lies, that’s all.KS: That case is totally different YA. Now the issue is on bias.YA: That case also on bias right?KS: But that is not on stay. We are now considering stay.YA: That case, DSAI, you alleged I was bias. So I dismissed your application. Then it went to appeal to the Court of Appeal, so they said no, you cannot appeal. Is that true? You were there I think, at the court. I was not there.KS: My Lord, this case wasn’t referred at all in that case. Unless, the Rowstead’s decision is overruled by Federal Court, your Lordship is bound by it.YA: And I was also bound by the case of DSAI referred by Prosecution which said that you cannot appeal.KS: But it is not apply to the situation like this. We say that your Lordship is bound by Rowstead. We hope that your Lordship will grant what we are praying for.YA: By the way, there is no appeal as yet. Can you give the undertaking that you will file it by this afternoon?KS: Yes, we will file it within an hour.MY: YA, I think I must say something right now. In Rowstead, Section 3 was not [].KS: YA, your Lordship is in the stage of giving a decision.YA: Never mind, I give both parties same opportunity.MY: The recent case, my learned friend was there, and he did not even mention about Rowstead. I think the issue is simple, whether you can appeal. But the Court of Appeal said you cannot appeal. So what stay are we talking about? I did not see whether or not my learned friend will make undertaking to file appeal today, tomorrow or later, the fact still remain. The Court of Appeal had decided that they did not have jurisdiction. Section 3 has not been fulfilled. Question of stay only arises if there is an appeal, or an appeal can be properly filed pending before the court.KS: A repetition is said by my learned friend just now. We will file appeal by this afternoon.YA: Permohonan untuk tangguh perbicaraan dibenarkan dan kes akan disebut semula pada 13 Julai 2011. Jaminan dilanjutkan.[11.50] Mahkamah ditangguhkan.

The prosecution called 26 witnesses including the complainant, PW1. The case for the prosecution started with PW1. He testified in his examination-in-chief among other things he started working as a volunteer with the accused from early March 2008 at the invitation of his friend, Rahimi.

From end of April 2008 until his resignation on 27th June 2008 PW1 was the personal assistant to the accused. As a personal assistant to the accused PW1 was paid official salary of RM1000 by someone he called Kak Jun. Other unofficial payments like allowance was paid by the accused, the amount depending on the number of trips.

PW1’s duty includes arranging meetings for the accused and communicating with agents and Members of Parliament from the party. He also assisted the Chief of Staff in preparing the work schedule and he was also involved in filing confidential documents like bank account. He was also responsible to oversee the accused hand phone and the accused will hand over his hand phone to PW1 to check on the SMS received.

At around 10.30 a.m. on 26.6.2008 PW1 was reminded by the accused of his earlier instruction given the previous day for PW1 to be at unit 11-5-2, Desa Damansara Condominium, No. 99, Jalan Setiakasih, Bukit Damansara. Unit

11-5-2 and unit 11-5-1 i.e. the unit mentioned in the charged belong to the accused friend, En. Hasanuddin.

PW1 was directed to be at the condominium at 2.15 p.m. on the same day. He left the office at about 1.45 p.m. He took along with him some documents received by him from the Chief of Staff, en. Ibrahim Yaakob i.e. PW24 to be delivered to the accused. PW1 drove to Desa Damansara Condominium in a Fiat van bearing registration WPK 5925. He arrived at the condominium at around 2.45 p.m.

To enter the compound of the condominium he had to pass the Security Guard stationed at the entrance of the condominium. There, PW1 had to mention the word ‘Mokhtar’ before being allowed to enter. From there PW1 drove to the visitor’s parking lot at P4. From visitor’s parking lot walked to the lift at level P4 which took him to level P2. From there he walked to a door. This door leads him to the lift that took him to the unit 11-5-1. This door has automatic locking system. PW1 had to press number 11-5-2 and a male voice answered ‘Ya’. When PW1 mentioned the word ‘Mokhtar’ the door was unlocked from inside. From there PW1 took the lift to the 5th floor and went straight to unit 11-5-1. According to PW1 although he was told to go to the unit belonging to En. Hasanuddin i.e. unit 11-5-2 he went straight to unit 11-5-1 because every time he went there he was asked by the accused to go to unit 11-5-1.

Upon arriving at unit 11-5-1, PW1 opened the door which was not locked, entered the place and put his shoes on the floor behind the door. In unit 11-5-1 PW1 noticed the accused was already seated at the dining table. PW1 sat at the table facing the accused and placed the document which he brought along with from the office on the table. After having sat down at the table the accused and PW1 discuss work schedule.

Not long after that the accused ask PW1 and I quote “Can I fuck you today?” PW1 said he refused initially and the accused asked him “Why?” PW1 responded by saying he did not wish to do that that day. He was then instructed in an angry tone by the accused to go to the master bedroom. PW1 complied and went into the master bedroom followed by the accused. In the room the accused went to the end of the room to close the curtain and proceeded to the door to switch off the light in the room. Having done so the accused then directed PW1 to clean himself in the bathroom. PW1 did not bath but merely wipe himself in the bathroom and came out covered only with towel. He saw the accused at the corner right of the bed and the accused was standing wearing a white towel and he asked PW1 to come to him. At that moment the accused hug PW1 while standing. Further evidence of PW1 was given in camera where PW1 described in detail how his anus was penetrated by the accused with the aid of lubricant known as KY Jelly. The carnal intercourse against the order of nature completed and PW1 went into the shower. He did not clean his anus but merely wipe his body with little water.

After PW1 and the accused was fully dressed the accused invited PW1 to the dining table. Ready on the table was curry puff, a thermos of hot water and 3in1 Nescafe. PW1 ate curry puff and had a drink. After 20 minutes PW1 left the unit 11-5-1. When PW1 left the unit the accused was still in the unit.

On 27th June 2008 in the accused’s office at the Tropicana Merchant Square PW1 sent an email to the accused conveying PW1 desire to resign. The reason he gave in the email for resigning were he was indisciplined and thus always came late. He felt the pressure because he was given room in the office over those who are more qualified. According to PW1 the real reason for him resigning was because he did not wish to be sodomised again.

On 28th June 2008 PW1 accompanied by his uncle En. Tuah bin Alip went to Tawakal Hospital at Jalan Pahang but failed to see any doctor because he was told at the counter that it was half day. PW1 and En. Tuah then went to Pusrawi Hospital at Jalan Tun Razak where he mat Dr. Mohd Osman bin Abdul Hamid. PW1 informed Dr. Osman that he had stomach ache and pain in the anus. PW1 was examined by Dr. Osman.

While Dr. Osman was inserting something into PW1’s anus PW1 told Dr. Osman that he was sodomised and needed an examination. Upon hearing this Dr. Osman immediately stopped examining PW1 Dr. Osman instead told PW1 Pusrawi Hospital did not have the facility for forensic analysis. PW1 was further informed by Dr. Osman that medical report form private hospital could not be used as evidence in court. PW1 was then directed by Dr. Osman to go to a government hospital. Dr. Osman suggested PW1 to go to Hospital Kuala Lumpur as it was the nearest hospital.

PW1 went to Kuala Lumpur Hospital and registered himself as an outpatient. That was at around 3.00 p.m. He was then referred to one Dr. Daniel. PW1 informed Dr. Daniel he wanted to be examined because he was sodomised by Dato’ Seri Anwar Ibrahim. Upon hearing this Dr. Daniel issued a referral letter and directed PW1 to One Stop Crisis Center (OSCC) at the Emergency Department. He arrived at the OSCC at around 3.30 p.m.

After about 30 minutes at the OSCC a doctor came and tool blood pressure from PW1. PW1 informed the said doctor his reason for seeking treatment especially about him being sodomised. At about 4.30 p.m. the said doctor came again and advised PW1 to lodge a police report, without which forensic examination could not be performed on PW1. After waiting for half to an hour two policemen came with form for PW1 to lodge his report. PW1 made his report as in exhibit P3 while in the OSCC.

Thorough examination of whole PW1’s body including the anus was done. Specimens were taken from PW1. Each specimen were put in container and sealed. PW1 were asked to put his signature on each of the seal. While PW1 was being examined the investigating officer, DSP Judy Blacious a/l Pierera i.e PW25 came.

The next day PW1 handed to PW25 KY Jelly (exhibit P4), a pair of long sleeve Ralph Lauren (exhibit P11), a pair of black trouser (exhibit P12), a pair of green shirt (exhibit P13), a pair of grey underwear (exhibit P14) and a pair of dark blue underwear (exhibit P15). PW1 further informed that since the day he was sodomised until the day he was examined by PW2, PW3 and PW4, PW1 did not pass motion.

PW1 was cross-examined at length. During cross-examination Pw1 denied meeting Dato’ Seri Najib who was then the Deputy Prime Minister ether on 27th or 28th June 2008. However PW1 admitted he had gone to the house of

Tuan Haji Khairul Anas who was then the Special Officer to Dato’ Seri Najib on 24th June 2008. From there he was brought by Khairul Anas to Dato’ Seri Najib’s residence where he met YAB Dato’ Seri Najib at about 8.00 p.m. The meeting with Dato’ Seri Najib took place for about 20 minutes where PW1 told his problem to Dato’ Seri Najib. Dato’ Seri Najib did not advise PW1 to lodge a police report. PW1 denied he was brought to see Dato’ Seri Najib by Dato’ Mumtaz.

PW1 then said on the way back from YAB Dato’ Seri Najib’s residence PW1 received a call from ASP Rodwan requesting PW1 to meet at Milia Hotel. PW1 met ASP Rodwan at Milia Hotel where he told ASP Rodwan the problem he faced. ASP Rodwan did not offer any advice. He also did not advise PW1 to lodge a police report but he did ask PW1 to meet him at Concorde Hotel on the next day, i.e. 25th June 2008. PW1 went to Concorde Hotel on 25th

June 2008 but ASP Rodwan did not turn up. After that there was no further communication between ASP Rodwan and PW1.

Hassan angrily put down the telephone and warned PW1 not to telephone him again.

PW1 admitted meeting En. Mohd Ezam Mohd Nor at Rawang. He was taken to see En. Mohd Ezam at 12.00 midnight 27.6.2008 until 1.00 a.m. 28.6.2008 by En. Rahimi and En. Tuah who was PW1’s uncle. During the meeting

PW1 informed Ezam that he was sodomised by the accused. En. Tuah was the first person PW1 told about thye incident occurred on 26.6.2008, the next person was Mohd Ezam and other than that was also informed was Dato’ Mumtaz.

PW1 was then cross-examined where in the middle of August 2008 PW1 had ‘mengangkat sumpah laknat’ at a mosque. PW1 agreed that the date that PW1 ‘angkat sumpah laknat’ was near the date the accused was to be named as a candidate in a by-election for Permatang Pauh province but stressed that it was only a coincidence that the two dates were near to each other.

The prosecution then call Dr. Khairul Nizam B. Hassan as PW2, Forensic Pathalogist Dr. Siew Sheue Feng as PW3 an Dr. Mohd Razali B. Ibrahim as PW4. All three of them had attended PW1 together at OSCC at around 9.00 p.m. 28.6.2008.

PW2 testified that on 28.6.2008 at 7.00 p.m. he was the Surgeon on-call. He received a phone call from a medical officer. He was informed that he is required to be present at a special room at OSCC, Emergency Unit of Kuala Lumpur Hospital at 9.00 p.m. because there was a sodomy case and he was informed the patient was already brought to the said room. PW2 testified he arrived at the said room at 9.00 p.m. upon arrival he saw Dr. Siew and Dr.

Khairul was already there. They were then briefed about the case by a police officer. After the briefing PW2, PW3 and PW4 proceeded to attend PW1.

PW2 examined the bottom part of PW1’s body which involves the anal and the rectum. He started with the external part of the anus followed by internal part. PW2 used protoscope to examine the internal part. PW2 found the area around the anal opening to be a bit moist compared to other areas. He did not find any evidence showing injury, trauma or fissure. PW2 then conducted protoscopic examination to see whether there was any accumulation of fluid inside or was there any injury or fissure that suggest trauma to the inner part to which he found none.

Initially PW2 tried to insert the protoscope without lubricant to see whether it could enter easily but because of the normal process of the closing of the anal canal PW2 found difficulty in inserting the protoscope into the anus. With the aid of lubricant PW2 managed to put the protoscope into PW1 and found there was no accumulation of fluid, injury or fissure suggesting trauma to the inner part.

PW2 took sample for DNA analysis. He took peri anal swab, high rectal swab and low rectal swab for seminal analysis. All these samples were handed to Dr. Siew Sheue Feng, PW3 to be put into the respective container, labeled and sealed.

Dr. Siew give evidence that he attended PW1 together with PW2 and PW4 at about 9.00 p.m. 28.6.2008 at OSCC, Emergency Unit of Kuala Lumpur Hospital. His main duties were to handle the forensic specimens collected in this case.
PW3 testified that he was informed by PW1 that PW1 had been sodomised by a high profile public figure. The last incident happened on 26.6.2008. PW3 specifically asked whether condom or lubricant was used to which PW1 said no condom was used, only lubricant was used. PW1 also informed PW3 that PW1 had gone to Pusrawi Hospital before coming to Kuala Lumpur Hospital. PW1 did not said plastic was inserted into his anus. PW3 asked PW1 whether there was ejaculation to which PW1 replied there was ejaculation. PW1 asked whether force was used to which he said no force was used.

PW3 further testified that he was present with Dr. Razali and Dr. Khairul (PW4) when PW1 was being examined. PW3 confirmed that Dr. Razali took swab from peri anal region, low rectal swab and high rectal swabs from PW1 while Dr. Khairul (PW4) took swabs from oral cavity at the left peritonsilar recess, below the tongue, from the left nipple and areola. Also taken by Dr. Khairul was penile swab from meatus and coronal sulcus of PW1’s penis. All specimens were put into containers, labeled and sealed by PW3, handed to PW25 to be sent to the Chemistry Department for analysis.

Dr. Khairul testified as PW4. He confirmed that he had examined PW1 together with PW2 and PW3. He took swabs from oral cavity at the left peritonsilar recess, below the tongue, from the left nipple and areola. Also taken by PW4 was the swab from meatus and coronal sulcus from PW1’s penis. All specimens were put into containers, labeled and sealed by PW3.

On 11 July 2008, Clinical Forensic Department of Kuala Lumpur Hospital received a chemist report (exhibit P25) regarding the result of the analysis conducted on the specimens collected. PW2, PW3 and PW4 then prepared

Laporan Forensik Klinikal i.e. exhibit P22 dated 22nd July 2008 signed by all three of them where they give conclusion or summary as follows:
1. No conclusive clinical findings suggestive of penetration to the anus/rectum and no significant defensive wound on the body of the patient; and
2. The presence of male DNA types from swabs “B5”, “B7”, “B8” and “B9” are best interpreted with the identification of the sites of sampling.

PW2, PW3 and PW4 were examined on their conclusion as stated in the exhibit P22. PW2 explained that the first conclusion was merely based on clinical examination conducted on PW1. When it was mentioned ‘no conclusive clinical findings suggestive of penetration’ does not mean there was no penetration. This is because sodomy can happened without causing any injury. To enable him to conclusively conclude whether there is penetration or otherwise he need to have both results, .i.e. clinical result and laboratory result on analysis on the specimens. At the time P22 was prepared they did not know the exact spot where specimens marked B5, B7, B8 and B9 were taken. That was the reason why they decided to put in exhibit P22 the second conclusion which reads: the presence of male DNA types from swabs B5, B7, B8 and B9 are best interpreted with the identification of the sites of sampling.

PW2 further testified after knowing specimen B5 contain swab from peri anal region of PW1, B7 and B8 contain high rectal swab from PW1, B9 low rectal swab from PW1, he was of the opinion there was penile penetration.

PW3 were also asked with the conclusion in exhibit P22. PW3 explained at the time P22 was prepared PW2, PW4 and himself did not know the exact location where the specimen B5, B7, B8 and B9 were taken. Without knowing where those specimens were taken they were unable to interpret the result obtained by the chemist. Thus in P22 they stated ‘the presence of male DNA types from swabs B5, B7, B8 and B9 are best interpreted with the identification of the sites of sampling’. Now that he know that B5, B7, B8 and B9 were respectively taken from peri anal region of PW1, high and low rectal swab of PW1, PW3 concluded there was anal penetration and it was consistent with penile penetration.

Likewise PW4 was asked about the conclusion in exhibit P22. He also gave the same explanation as that of PW3.

PW2, PW3 and PW4 were cross-examined. PW2 testified that PW1’s bowel was empty at the time he conducted the examination but agreed to the suggestion of the counsel that this was not consistent with PW1’s evidence who testified he had not passed motion since the day of the incident. PW2 explained this was because the lower part of the rectum was not a reservoir of feces. Feces were stored in the colon until the sigmoid area. All the digested food would be kept there. When mass-movement which was a psychological process that happened in which the body tried to expel whatever digested thing after it had been processed and absorbed happened there would be a sensation that you want to defecate but this did not mean the feces will move to the rectum. And if the place one was in socially in common pain one could basically prevent the feces to moving from the sigmoid to the rectum.

PW2 further explained that the specimen of high rectal swab was tekan in the rectum, 9 cm from the anus. Counsel suggested that it was impossible to find specimen high up the rectum because any specimen would have laid down due to mass-movement, peristalsis, gas and gravity. PW2 did not agree with this suggestion because human bowel is not a straight line like a pipe, it was a folded area, folded mucosa so material sits there, not necessarily all will come out immediately. Some would still be left at the area he took the high rectal swab.

PW3 was cross-examined extensively on medical history taken from PW1. PW3 said he took medical history of PW1 where PW1 said he was sodomised by a public figure. The incident took place early March 2008. At that time PW1 was the personal assistant to the said public figure. PW3 further explained that what question to ask regarding medical history depended on what the complaint was. If patient complain of tenesmus like in ID16 the question to be asked under medical history would be along the line whether there is bleeding, any pain when passing motion and any blood in the stool. But in this case PW1 complained that he was being sodomised therefore the question asked for the purpose of the medical history would be more towards the complaint in which whether PW1 had pass motion and had seen other doctors before coming to Kuala Lumpur Hospital.

PW3 denied he knew where sample B-B9 were collected when he together with PW2 and PW4 prepared the exhibit P22. PW3 further testified the marking B-B9 were not made by him. He only came to know B5, B7, B8 and B9 were respectively taken from peri anal region of PW1, high and low rectal swab o PW1 while giving evidence in court.

PW4 was also cross-examined. He testified that PW1 was calm while being interviewed. PW4 did not take sample from the back of PW1 although he was aware that in cases where there is contact in sodomy, contact DNA may be obtained from the contact area. PW4 did not do so after taking into account the incident happened 2 days before PW1 was examined.

PW4 was also asked whether he was briefed by DSP Judy regarding the complaint made by PW1. PW4 said he was told PW1 was sodomised by a well known figures. PW4 came to know of oral sex while interviewing PW1 when PW1 told PW4 he was asked to perform oral sex. PW4 was then referred to “Borang Pemeriksaan Kesihatan”, exhibit D28 which was filled up by Dr. Razuin, PW23. PW4 agreed that may of the columns in the form was not filled up and in D28 it was stated attempted sodomy and attempted oral sex.

Dr. Razuin bt. Rahimi was called as PW23. She was the one who prepared D28. She was the medical officer at the Medical Forensic, Kuala Lumpur Hospital at that time. At 7.30 p.m. on 28 June 2008 she was directed by Dr. Siew to be present at OSCC. PW23 arrived at the OSCC at 8.30 p.m. There she met DSP Judy Blacious. DSP Judy Blacious told PW23 that there was a sodomy case involving Mohd Saiful Bukhari as the complainant and Dato’ Seri Anwar Ibrahim. DSP Judy then introduced PW1 to PW23. PW23 interviewed PW1. PW1 told PW23 he has been sodomised and the last incident happened on 26 June 2008 at about 3.15 p.m. PW23 asked PW1 whether there was penetration, ejaculation occurred and lubricant used. PW1 replied there was penetration, ejaculation occurred and lubricant was used.

Subsequently PW2, PW3 and PW4 came to examined PW1. PW23 remain with PW2, PW3 and PW4 while examining PW1. PW23’s function was to interview PW1 and taking notes while PW1 was being examined by PW2, PW3 and PW4. D28 was prepared by PW23.

The prosecution then called Dr. Seah Lay Hong, PW5. She was attached at the Chemistry Department Petaling Jaya as a government chemist. She testified that at 7.55 p.m. on 30.6.2008 she received from DSP Jude Blacious 12 envelopes respectively marked B, B1, B2, B3, B4, B5, B7, B8, B9, B10 and B11, that is exhibit P31-P42. All were sealed with PDRM 330 seal. PW5 issued acknowledgment receipt, P30. PW5 then handed envelope marked B11 to

Using the PCR technique, PW6 carried out DNA profiling analysis on swab from the toothbrush (exhibit P58A), swab from the towel (exhibit P59A), swab from the bottle (exhibit P61A), the hair (exhibit P57A) and also the hair D2(a) found on the towel (exhibit P60A).

DNA profiles were successfully developed from the swabs from toothbrush, towel and the bottle but not from the hairs. These DNA profiles matched each other indicating that the DNA identified originated from the same source. PW6 then compared the DNA profiles she obtained with that obtained and reported by Dr. Seah Lay Hong in her chemist report, exhibit P25. PW6 found DNA profile developed from the swabs of toothbrush, towel and bottle to match with the DNA profiles of “Male Y” reported by Dr. Seah Lay Hong in her report, exhibit P25 thus indicating that the DNA identified originated from the same source.

En. Amidon Bin Anan, PW15 was the Head of the Crime Scene Investigation at Polis Di-Raja Malaysia Forensic laboratory. He testified to the effect that on 30th June 2008 he was asked by investigating officer DSP Jude Blacious to go to unit 11-5-1 and unit 11-5-2 of the condominium. From unit 11-5-1 PW15 collected a strand of hair (exhibit P43C) and placed it in envelope (exhibit P43). At unit 11-5-2 PW15 seized a carpet (exhibit P49A) and duvet (exhibit P50A). Carpet (exhibit P49A) was wrapped with brown paper (exhibit P49). Duvet (exhibit P50A) was wrapped with exhibit P50. All the exhibit were then handed to the investigating officer DSP Jude Blacious.

At 11.40 a.m. 17th July 2008 PW15 went to lock-up cell of D9, IPK Kuala Lumpur. He found on the floor a strand of hair (exhibit P57A) which he put tag number “4”, a white toothbrush (exhibit P58A) which he put tag number “5”, and a white ‘Good Morning’ towel (exhibit P59A) which he put tag number “6”. On the wall near the toilet of the lock-up cell was a mineral water bottle (exhibit P61A) which he put tag number “7”.

PW15 then without touching or removing the items found in the lock-up cell instructed L/Kpl Hazri, PW14 to take photographs of those items. PW14 took 12 photograph i.e. P78A-L of those items.

PW15 then instructed Insp. Nurayuni, PW16 to prepare 4 envelopes i.e. P57, P58, P59 and P60 and to write the particulars of the items in front of the said envelopes. The envelopes were marked “4”, “5”, “6” and “7” respectively.

PW15 then received all envelopes from PW16 and PW15 personally placed the hair in envelope marked “4”, toothbrush in envelope marked “5”, ‘Good Morning’ towel in envelope marked “6” and the mineral water bottle in envelope marked “7”. PW15 then signed at the back of the four envelopes and sealed all the said envelopes. PW15 confirmed that the four envelopes which contained the items found in the lock-up cell were as shown in photograph no. 13 and 14 of exhibit P78.

On the same day, 17th July 2008 at 12.40 p.m. PW15 handed all exhibit to DSP Judy Blacious at IPK Kuala Lumpur. PW15 and PW25 then signed a handing over form i.e. exhibit P80.

PW17, DSP Yahya Bin Abdul Rahman was the officer in-charge of the lock-up D9, IPK Kuala Lumpur. He testified that there was only one cell at D9, IPK Kuala Lumpur. On 16th July 2008 at 11.05 p.m. the accused was brought in the cell. He was taken out on 17th July 2008 at 8.00 a.m. PW17 testified that the accused brought along a mineral water bottle and two towels when he was brought into the cell. The accused was the only occupier of the cell during that period.

Being the officer in-charge PW17 visited the lock-up from time to time. The [] of the visit he gave to L/Kpl Nik Rosmady Bin Nik Ismail, PW18 who was on duty guarding the lock-up a package of ‘Good Morning’ towel, a toothbrush, toothpaste and a bar of soap to be handed to the accused.

On 17th July 208 after the accused was brought out of the cell PW17 saw ‘Good Morning’ towel and toothbrush on the cell’s floor while the mineral water bottle was on the toilet wall as shown in photograph P78. PW17 then instructed the policemen on duty to lock up the cell and not to allow anybody to touch any of the things in the cell.

L/Kpl Nik Rosmady, PW18 testified to the effect that he was on duty to guard the lock-up at D9 on 16th July 2008. He reported for duty on 16th July 2008 at 1.00 a.m. when he reported for duty there was no detainee in the lock-up.

At 11.05 p.m. 16th July 2008 the accused was brought into the cell. PW18 then received from PW17 a plastic packet containing a towel, a toothbrush, toothpaste and a bar of soap. He handed this package to the accused. The accused took the package and put on the cell floor. PW18 finished his duty at 1.30 a.m. on 17th July 2008. His duty was taken over by Konstabel Mohd Azry Bin Mohd Toyib, PW19. Before ending his duty PW18 check the lock-up and saw the accused was still inside the cell.

PW19 was on duty until 7.25 a.m. 17th July 2008. His duty was taken over by L/Kpl Mohd Jasni Bin Jaafar, PW20.

PW20 testified that he reported for duty at 7.26 a.m. 17th July 2008. He saw the accused was in the cell. He saw the accused went to the toilet and brushed his teeth. At 8.10 a.m. the accused was brought out from the cell. PW20 then lock the cell.

Other than the witnesses mentioned above the prosecution also called PW8, PW9, PW10, PW11, PW12 and PW13. Their evidence was in relation to installation, seizure and handling of CCTV recording at the guardhouse and also at the management office of the condominium. From the recording it was shown vehicle including that driven by PW1 were seen entering and leaving the condominium. From the recording of the CCTV around the lift area it was shown individual including PW1 used the said lift.

Ahmad Humaizi Bin Awang, PW22 an officer from Road Transport Department gave evidence relating to the registered owner of vehicle recorded in the CCTV entering and leaving the condominium. One of the car bearing registration number WMK6 was registered in the name of Anwar Bin Ibrahim, no. kad pengenalan 470810-07-5095.

Jude Blacious a/l Pereira, PW25 was the investigating officer of this case. He testified inter alia he was on duty 28th June 2008 who was present at OSCC when the three doctors examined PW1. At 12.45 a.m. on 29.6.2008 he received from PW3 plastic package i.e. exhibit P27 containing exhibit P6A-P6L while in the same room. He brought back exhibit P27 containing exhibit P6A-P6L to his office and kept it in the cabinet in his office at IPK Kuala Lumpur. He then locked the cabinet.

At 7.30 p.m. on 29.6.2008 at his office he received from PW1 KY Cream (exhibit P4) as stated in search list (exhibit P10). He also received a long-sleeved shirt (exhibit P11), a pair of black trousers (exhibit P12), a long-sleeved shirt (exhibit P13), a grey underwear (exhibit P14) and a dark blue underwear (exhibit P15) from PW1. This seizure was recorded in the search list (exhibit P7, P8 and P9). These entire exhibit were kept in his cabinet at his office.

On 30.6.2008 at about 9.00 a.m. PW25 took out exhibit P27 containing exhibit P6A-P6L from his cabinet. He opened exhibit P27 and put all the containers (exhibit P6A-P6L) in envelope as follows:
a) P6A – in envelope which he marked “B”
b) P6B – in envelope which he marked “B1”
c) P6C – in envelope which he marked “B2”
d) P6D – in envelope which he marked “B3”
e) P6E – in envelope which he marked “B4”
f) P6F – in envelope which he marked “B5”
g) P6G – in envelope which he marked “B6”
h) P6H – in envelope which he marked “B7”
i) P6I – in envelope which he marked “B8”
j) P6J – in envelope which he marked “B9”
k) P6K – in envelope which he marked “B10”
l) P6L – in envelope which he marked “B11”.

On the same day at 7.55 p.m. PW25 handed over all the envelopes with the content to Dr. Seah at the Chemistry Department for analysis. Together with the envelope was form POL 31, exhibit P24. PW25 was given receipt, exhibit P30 by Dr. Seah acknowledging receiving those exhibit.

PW25 further testified that on 30 June 2008 at around 3.05 p.m. he was at unit 11-5-1 and unit 11-5-2 with En. Amidon Bin Anan, the Head of Crime Scene Investigation at the Polis Di-Raja Malaysia Forensic laboratory. PW25 received from PW15 envelopes (exhibit P4) containing a strand of hair (exhibit P43B) at unit 11-5-1, a paper package (exhibit P49) containing carpet (exhibit P49A) and package (exhibit P50) containing duvet (exhibit P50A) which were collected from En. Amidon at unit 11-5-2.

On the same day at 4.45 pm, PW25 handed this exhibits to Dr. Seah. Accompanying the exhibits was POL 31, exhibit P29. He was given receipt, exhibit P51 as the acknowledgment. All those exhibits that were handed over to

PW5 were return, this time were chemist seal to P25 on 7th July 2008 at 11.30 am together with chemist report, exhibit P25.

PW25 received 2 hard disk, exhibits P76 and P77 on 30.6.2008 from residence manager; Encik Haris bin Mohamad, PW12. He marked Hard disk 1 and Hard disk 2. These two hard disks were then handed over to Chief Inspector Fauziah, PW8 at Forensic Laboratory at IPD Cheras on 3.7.2008 at 10.15 am. These 2 hard disks were subsequently returned to PW25 on 24.9.2008.

PW25 also testified at 12.40 noon, 17 July 2008, at the lock up of D9 IPK Kuala Lumpur, he received from PW15 exhibit P57A: a hair strand, a white toothbrush: exhibit P58A, a white Good Morning towel: exhibit P59A, and a mineral water bottle: exhibit P61A. All these exhibits were in the envelopes exhibit P57, P58, P59 and P61 respectively which were sealed with PDRM Forensic seal. PW25 put his marking on those exhibits as “D”, “D1”, “D2” and

“D3” respectively. On the same day, at 6.56 pm, PW25 handed these exhibits to Puan Nor Aidora Saedon for analysis. On 22.7.2008 received that from PW6 these exhibits which were sealed with chemist seal together with chemist report (P52).

Now, it is time for the decision at the end of the case for the prosecution. At the close of the prosecution’s case, what was needed to be proved is a prima facie case. Under Sec 180(4) of Criminal Procedure Code, a prima facie case is said to be made out when the prosecution had adduce credible evidence proving each ingredient for the offence which if unrebutted or unexplained would warrant a conviction. As being held in the case of Looi Kow Chai & Ors v PP [2003] 1 CLJ 734, in determining whether the prosecution had successfully establish a prima facie case or not, the court must subject the prosecution’s evidences to maximum evaluation. It was held in that case, and I quote:
“The correct test to be applied in determining whether a prima facie had made out under Section 180 of Criminal Procedure Code was that as encapsulate in the judgment of Hashim Yeop Sani J (as he then was) in Datuk Mokhtar

Hashim & Anor v PP. Therefore a judge sitting alone under Section 180 of Criminal Procedure Code must subject the prosecution’s evidences to maximum evaluation and ask himself a question: if I decided to call upon the accused to enter defence, and he elects to remain silent, am I prepared to convict him on the totality of evidence contained in the prosecution’s case? If the answer is in the negative, then no prima facie case had been made out, and the accused would be entitled to an acquittal.”

Subjecting the evidence of the prosecution to the maximum evaluation to determine if the defence was to be called did not mean that the prosecution had to prove the case beyond reasonable doubt at this intermediate stage.

In our case, the accused is charge committing on PW1 carnal intercourse against the order of nature. To prove a prima facie case, the prosecution needs to prove that on 26th June 2008, between 3.01 pm and 4.30 pm at Unit 11-5-1 Desa Damansara Condominium, the accused voluntarily introduced his penis into PW1’s anus. The prosecution relied on PW1’s evidence to prove its case where PW1 clearly testified that he was at the place mentioned in the charge. While PW1 was there, the accused introduced his penis into PW1’s anus until the accused ejaculated. This evidence from PW1 if accepted clearly established a prima facie case for an offence of carnal intercourse against the order of the nature as stated in the charge. So the question here is whether PW1 was a credible and truthful witness and whether his evidence as to what transpired between him and the accused at the Unit 11-5-1 was true and could safely be relied upon.

If the court finds that PW1 not to be a credible witness, then the accused has to be acquitted without have to look at the corroborative evidence to support PW1’s evidence. In the case of Director of Public Prosecutor v Killbourne

[1973] 1 ALL ER, Lord Hillsome said at page 425:

“Corroboration is only required and afforded if the witness requiring corroboration or giving it is otherwise credible. If his evidence is not credible, a witness’s testimony should be rejected and the accused acquitted. Even if it could be found that evidence of capable of being corroboration in other’s testimony, corroboration can only be afforded to or by a witness which is otherwise to be belief. If a witness’s testimony falls or insufficient, the question his needing or capable of corroboration does not arise.”

Realizing the fact that the charge against the accused is whether the evidence of PW1 could be accepted or not, it was not surprised defence had either in cross examination of PW1 or in the submission tried to play a picture of PW1 as someone who had zero credibility, and thus his evidence could not be belief and must be rejected. PW1 was subjected to lengthy cross examination which sometimes bothering to a harassment. It was put to him by the defence counsel that he was not a good muslim, he came from a broken family, he was even labeled a traitor when he admitted for being a Barisan Nasional’s supporters but voted for PKR’s candidate on the last general election.

With greatest respect to the defence I found that all these are irrelevant and merit no further consideration in determining PW1’s credibility. However upon raised by Mr. Karpal in his submission with regard to PW1’s credibility merit careful consideration. Encik Karpal submitted while PW1 submitted that the evidence occurred without his consent PW1 had never try to escape although he had ample opportunity to do so. PW1 instead follow all the instruction given by the accused. PW1’s act of eating and drinking after the incidents, did not try to get help from the occupier at 11-5-2, or to the security guard, did not immediately lodge a police report, and attended PKR’s function on the next day, did not reflect on the attitude of someone who had been sodomised by the accused. Therefore, according to the learned counsel, PW1 had lied when he said in his police report the incident occurred without his consent.

Thus, the entire evidence of PW1 could not be believed and must be rejected.

Learned counsel urged the court not just reject PW1’s evidence, but also to charge PW1 under Section 196 of Penal Code. In other words, what the defence was saying is that since PW1 testified that the incident performed on him was without his consent, but at the same time he failed to run away from the place of incident, failed to ask for help from the occupier of unit 11-5-2, did not tell it to the security guard, and did not lodge a police report immediately, it follows that PW1 would not only lying on insisting that he had not consented to be sodomised, but he also fabricated false evidence with intention to procuring the accused’s conviction for an offence of sodomy which never took place. I find it is not tenable to use PW1’s failure to escape when he had the opportunity, failure to seek help or failure to complaint to the security guard as indicative that the offence did not take place.

Under normal circumstances, such failure would be construed to mean that the incident was indeed took place, but it was consensual which was not relevant in our case. And in any event, PW1 was never asked to explain why he did not run or seek help from the occupier of Unit 11-5-2 or complaint to security guard or make police report immediately. However from the established facts, borne out by the evidence of PW1 it was not difficult to understand why PW1 had acted the way he did though he insisted that he did not consented to be sodomised.

PW1 was a young man aged 22 years old under the employment of the accused. He was not just any employee, but the accused’s personal assistant who had to deal directly with the accused. PW1 idolized the accused since he was a child. He like working with the accused and found him to be charismatic. The accused was generous with PW1 and PW1 was given a special treatment by the accused like presented him with a suit even he was working there less than 2 months. He also was given preferential treatment when he was allocated a room in the office amongst senior colleague.

The interview with the doctors, in particular, Dr. Razuin and from PW1’s own evidence suggested on the incident of 28th June was not something unaccepted. PW1 had reported to various people before but no one advise him to lodge a police report and some were even skeptical. In fact the people like Encik Ezam, Mumtaz and his uncle himself, even discourage PW1 from lodging a police report because they were concerned about PW1’s future. The people in Unit 11-5-2 were all accused’s friends.

Based on those facts and circumstances, PW’s failure to run away to complaint to people in Unit 11-5-2 or to lodge a police report is understandable. It could not be a basis to find that PW1 is not a credible witness. After finding PW1 credible was not affected by his failure to run away, seek help from the occupier of Unit 11-5-2 or to lodge a police report immediately, the next question is whether the evidence itself given by PW1 showing that the accused had introduced his penis into PW1’s anus could be accepted as credible, and is it safe for the court to rely on it to ask the accused to enter his defence. In determining this issue, it is imperative to determine from our side whether there was an opportunity for such act to take place. This is because, without the opportunity, this incident would not occur. (See Sarkar’s Law Evidence page 218). Evidence affording the opportunity for the offence to take place can be established firstly from the relationship between PW1 and the accused. It was not in dispute PW1 was the accused’s personal assistant. In that capacity, he had to manage the accused work’s schedule and he had to accompany the accused in meeting. It was the accused on 25th June 2008 directed PW1 to be present at Desa Damansara Kondominium on 26th June 2008.
On 26th June 2008, 10.30 am, the accused reminded PW1 to go there to discuss work schedule. In between 12.15 to 12.30 on 26th June, the accused called his Chief of Staff Ibrahim Yaakob, PW23 that he had left a document in an envelope required in the meeting behind, in the office. PW1 was then asked by Ibrahim Yaacob to send the envelope to the accused who was then having a meeting at 11-5-2 of the said condominium. The CCTV showed that PW1 were in fact went to the said condominium. This fact which was not disputed showed that the accused and PW1 were in the same vicinity during the time period mentioned in the charge. Thus, affording an opportunity for the offence mentioned in the charge to occur. Presence of opportunity however did not necessarily mean that the incident took place.

In Sarkar’s Law Evidence 16TH Edition page 218 stated, the judge must be on his gut, against dumping hastily from opportunity for to commission of a crime. There can be no crime without opportunity but that was a [] between an opportunity and commission.

In our case, besides there was an opportunity for the offence to take place, the evidence of PW1 showed the offence did in fact occurred. PW1 was subjected to lengthy cross examination. PW1 said fastly and consistently in detail on how the accused had introduced his penis into PW1’s anus with the aid of the lubricant. Nothing came out from the lengthy cross examination on PW1 or from the evidence of other prosecution’s witnesses that could suggest what PW1 had told the court that his evidence was something which is not probable. I find PW1’s evidence remains intact. He had truthfully and without embarrassment or exaggeration in his evidence narrated in [] detail how he was sodomised by the accused on the date and at the place stated in the charge. I find him to be a truthful witness and his evidence is reliable and if accepted, would establish all the ingredients that are required to prove a charge against the accused.

In PP v Mohd Ali at page 528, in the absence of contradiction, however, and in the absence of any elements of inherent probability, the evidence of any witness, whether police witness or not to give evidence of affirmation should be normally be accepted. However for cases involving sexual offences like in our case it is desirable though not technically essential to look for corroborative evidence to support the complainant’s evidence.

In PP v DSAI [2001] 3 MLJ, Ariffin J had occasion to see at page 267, nevertheless in a case of this nature which is a sexual offence, corroboration of Azizah’s evidence which desirable though not technically essential and the court to give sufficient attention to the matter. In the same case, Ariffin J after referring to [] All ER 1962 375 which stated “a charge in 377 is one very easy to bring and very difficult to refute, and in the evidence in support of those charge must be very convincing. The evidence of such charge must also be corroborated. It is said that it is unsafe to convict on the uncorroborated testimony of whom the said complaint is said to be committed on, unless for any reason that testimony is of special way (see []).”. “It is trite law that complainant evidence on the said offence required corroboration, although a conviction founded upon an uncorroborated evidence of the complainant is not illegal provided that the presiding judge must warned himself of the danger of convicting uncorroborated evidence. ”(see Chiu Nang Hong v PP).

“The object of corroboration is not of doubt to satisfy the court that the witnesses are telling the truth and it is safe to act upon them. It is not necessary that the corroboration could be of the actual commission of the crime, for then that would be an independent commission of the offence. It would be enough corroboration for the offence of relevant circumstances connecting the accused with the crime.”

It was contended by the defence that PW1 was not a truthful witness and his evidence must be rejected and the court need not have to look for the corroborative evidence. As I had stated earlier in this judgement, I found PW1 to be a credible witness, there is nothing improbable about his evidence. His evidence was reliable; therefore the next question to be decided is whether there is evidence to corroborate PW1’s evidence. There was no dispute that the accused had directed PW1 to go to said Condo on 26th June 2008 at about 2.15pm to discuss his work schedule. PW1 testified he did go the condo as directed.

Encik Ibrahim Yaakob (PW24) testified that the accused called him about 12.15pm to deliver the envelope to him at the condo. PW1 was then directed by PW24 to deliver the said envelope to the accused. PW1’s evidence was shown that he delivered the said envelope at about 2.45 pm on 26.6.2008 and he was there between 3.01 pm and 4.30 pm at unit 11-5-1 that day. I find PW24 corroborated PW1’s evidence that PW1 and the accused were at the condominium affording not only opportunity but also confirming the vicinity of time.

PW1 arrived at the condo and take a lift to 5th floor recorded on CCTV further provided independent corroborative evidence supporting the presence of PW1 at the said condo. PW1 driving a Fiat van bearing registration WPK 5925 which according to the Head Unit Record of Kuala Lumpur, Transport Department, Encik Ahmad Humaizi bin Awang, belonging to the father of PW1’s fiancée at that time was seen entering the compound of Desa Damansara Condominium, at 14.47.44 on 26th June 2008 as recorded by Camera 1 on Hard Disk 1 (P68C).

According to PW11, Mohd Sharizuan an analyst at Cyber Security, the time shown on the said harddisk was late by 9 minutes 15 second compared to Malaysian Standard time. To determine the real time, 9 minutes and 15 second must be added to the time shown on the hard disk. This make the time PW1 entered the compound of the said condominium at 2.56.59 pm.

PW1 was then seen taking a lift to 5th floor at 14.42.56. The same thing happened, according to PW1 Mohd Zabiril Adil the time shown at Hard Disk 2 (exhibit P67C) located at management office was late by 19 minutes when

compared to Malaysian Standard Time. The time PW1 came out from the lift was at 3.01.56 pm. PW1 was then seen entering the lift at 5th floor to leave the building at 15.11.38 as recorded by Camera 7 on Hard Disk 2. The actual time PW1 leave the building was 4.30.38pm.

The car bearing registration WPK 5925 drove by PW1 was seen leaving the compound of condo at 16.35.05 as recorded by Camera 5 on the same day. The actual time PW1 seen leaving the condominium is 4.44.20. From recording of Camera 4 on Hard Disk 1, the car bearing the registration number of WMK 6, which according to PW22 belong to the accused was seen arriving at the said condo at 12.19.58 which was 12.29.30 for the actual time.

Someone resembling the accused was seen taking the lift from level P1 to 5th floor and exited the 5th floor at 12.15.11 as recorded by CCTV which was 12.24.11pm (the actual time). The same person was seen leaving the 5th floor and took the lift to P1 at 17.14.54 as recorded by CCTV which was 5.32.54 pm (the actual time). The car bearing registration number WMK 6 left the compound of condominium at 17.13.23 as recorded by CCTV which was 5.13.23 pm. The actual time was 5.39.44pm.

Based on the said evidence the learned counsel for the defence submitted that the evidence did not show PW1 did in fact go to 5th floor. According to the learned counsel, during the period PW1 was seen arriving then leaving the said condominium, PW1 was in fact hiding at one of the floors. I find it is hard to accept this submission in the light of PW1’s clear evidence that he went to the 5th floor and CCTV showed the same. I find the submission by the counsel is nothing but mere speculation without any basis to support it.

Based on the above evidence, I find that the accused and PW1 were at the vicinity of the crime scene within the period mentioned in the charge. The presence of the accused at the vicinity of the crime scene and the proximity of the time to the commission of the offence should goes to the opportunity for the offence to take place. More importantly there are corroborative evidence, that means support to the credibility to PW1’s evidence.

Corroborative evidence as to what transpired between the accused and PW1 at Unit 11-5-1 could be found in the medical history of PW1 as evidence by Dr. Razuin who interviewed PW1 and Dr. Siew. She had been informed by PW1 that he had been sodomised by the accused. Lubricant was used and the accused fondled PW1’s breasts. PW1 informed PW23 that there was penetration and ejaculation as well. These are noted and reflected in the pro forma report, ID28.
Likewise Dr. Siew, PW3 also testified that he was informed by PW1 that he was sodomised by a high profile public figure for at least two months and the last incident happen was on 26th June 2008. When asked by PW3 if the condom used, PW1 said no condom was used. PW1 affirmed that lubricant was used and there was penetration. He also confirmed that ejaculation was happen.

The history given by PW1 was also noted in the medical report (P22) which was prepared by the 3 doctors, PW2, PW3 and PW4. It is stated under the heading ‘History’ [read]. This medical history narrated by PW1 and noted by medical doctors PW2, PW3 and PW4 is corroborated evidence.

The more crucial evidence which corroborated evidence of PW1 on the factum of penetration by the accused’s penis into PW1’s anus was the evidence of the medical doctors PW2, PW3, PW4 and chemist, PW5. PW2, PW3, PW4’s evidence showed swabs were taken from PW1. Among the swabs is P6F taken from peri anal region, P6H and P6I taken from high rectal region and P6J taken from low rectal region. These swabs were put in the containers sealed and handed to IO (PW25) to be handed to PW5 for analysis.

From these swabs, PW5 confirmed the presence of semens. PW3 testified according to forensic principle, every contact leaves traces and in this case swabs P6F, P6H and P6I and P6J were taken from the rectal of PWI in which the semens were found. It means, there had been a male organ contacting the rectal region leaving sperms in that area. This was a clear evidence of penetration.

All 3 doctors further testified that based on the history of PW1, and the sites where the swabs of B5 contained swab of peri anal region of PW1, in B7 and B8 which contained high rectal swab from PW1, and B9 which contain low rectal swab from PW1 that could positively conclude there was a penal penetration on PW1’s anus. PW2, 3 and 4 were subjected to lengthy cross examination including on their finding which showed no scaring, fissures or any signed of recent injury to the exterior of PW1’s anus. And also to the conclusion of the summary of the exhibit P22 which stated “No Conclusive Clinical Finding Suggestive of Penetration to the Anus of Rectum, and No Significant

Defensive Wound on the Body”. As to the summary in P22 which stated “No Conclusive Clinical Finding Suggestive of Penetration to the Anus of Rectum and No Significant Defensive Wound on the Body”, PW2, PW3 and PW4

explained did not mean that there was no penetration. Penetration could take place without causing any injury. PW3 and PW4 explained the absence of any injury to the anus could happen due to 1) the duration to see the doctors,

2) no undue force used, and 3) the used of lubricants.

In Chapter 41 under Clinical Forensic Evidence, the author explains that ‘non consenting intercourse need not produce any objective signs of injury to genital [] or anus. In the same chapter but dealing with the penetration to the anus, the author explains that penetration to the anus; either as consenting or non consenting act rarely produces injuries in adults. However, forceful unlubricated penetration may produce signs of blunt trauma. Injuries at that sign may include fissure, heamiathorma, and lacerations.

In this case, PW1’s evidence which was recorded in the medical history, noted by PW23 showed lubricants was in fact used. Based on PW1’s testimony, and what he told doctors during the history taking, no undue force was used by the accused and this was reflected in pro forma D28. Hence I find, nothing inconsistent in the doctor’s finding that there was no scarring, fissure or any signs of injury to that external area of PW1’s anus.

The defence also submitted that the evidence of PW2, PW3 and PW4 should be rejected because they were not experts. On the issue of expert witness, Hashim Yeop J in Dato Mokhtar bin Hashim v PP explain to qualify to you, to give such evidence, the witness must certify the court that he is indeed an expert, that he is specially skilled of enquiry carried out by him. An expert is one who is particularly trained in any art, trade, profession being possessed or particular knowledge concerning the same. The witness must have made a special study of the subject or have acquired special experiences on the subject.

In Junaidi bin Abdullah v PP, Mohd Azmi Supreme Court J said,

“In our view, the test to be applied for the purpose of Section 45 of the Evidence Act is this. First, does the nature of the evidence require special skill? Second, if so, has the witness acquire special skill either by academic qualification or by experience so that he has adequate knowledge to express opinion on the matter.”

Suffian LP in PP v Sulaiman said,

“As to whether or not Mr. Lam is an expert, it is true that this is a preliminary skill to determine, but it is the question upon which in practice [] prevails. This is because, for the expert must be skilled, he may not do so by special study. He may be so by experience and the fact that he did not acquire knowledge professionally goes merely to the weight and not to the credibility.”

In our case, the evidence showed that PW2, is a General Surgeon attested to Hospital Kuala Lumpur. He obtained his MBBS in 1998 and Masters of Surgery in 2007. He started as medical doctors in 1998 and as specialist by

2007. Up to the time he testified to court he conducted examination of anus in about 100 cases, 2 of which are sodomy cases.

PW3, is a professional forensic medical specialist at HKL. He obtained a Bachelor Degree of Medicine and a Bachelor of Surgery from Manipal [] Education, India in 1997. He also holding a [] in Medical Pathologist specialize in

Forensic in 2004. He also undergone training and courses in Human Anatomy [] at University of Tennessee of USA and a special training in sexual assault cases in [] Greece. PW3 conducted between 200 and 300 examination so far and approximately 20 of those cases were sodomy cases. He had also done collection of samples more than hundred times and had given evidence in court before. He had handled about 50 cases of sexual assault.

As for Dr. Khairul Nizam (PW3) he is currently attached to Hospital Putrajaya. Before this, he was attached to HKL. He obtained his Bachelor of [] from Bangalore University India in 1996. He obtained his Master in Medicine specializing in Emergency Medicine in 2006 from the USM. He joined the Emergency and Trauma Department HKL since 2004 until 2008 until he was transferred to Putrajaya Hospital. He had attended over 20 sodomy cases.

Based on the academic qualification and the experience of PW2, PW3 and PW4 and on the authorities I cited above, I find no difficulties in accepting PW2, PW3 and PW4 as expert witness they are qualified and competent not only to conduct examination, take samples of PW1 but also to give interpretation based on their observation during examination of PW1.

Encik Nair, one of the learned counsels to the defence submitted further to the effect that PW2’s evidence as to taking the examination was not reliable. This was because PW2 was not asked and record the bowel habit of PW1 although PW2 admitted and it was crucial to ask it. Thus the counsel urged the court to assume that PW1 to have normal bowel habit of defecating once a day. It was further submitted that PW1 had defecated before he was examined on 28th June 2008 and even if there was at all any traces of semens, seminal fluid as alleged therefore a lot had been all passed out leaving us absolutely nothing even if PW1 managed to hold back defecation, his rectum is said to be []. This according to the counsel contradict PW2’s evidence that he testified on the PW1’s rectum to be empty.

With regard to this issue, it is important to study PW1’s evidence together of that PW2. PW1 clearly testified that he did not pass motion because he wanted to preserve evidence. It was clear that it was a conscious effort of PW1 not to pass motion. PW2’s evidence showed in short that a man could have conscious effort in delay motion. PW2 evidence that he found PW1’s anus is empty when PW1 was examined, he explained that this was because that the lower part of the rectum not a reservoir of feaces. This is restored in the colon until the sigmoid area. All the restored food would be kept there when a mass movement which was a psychological process that happen in which a body tries to expel what [] after it had been processed and [] defecate. But this doesn’t mean that feaces move to the rectum. And if the feaces [], could prevent the feaces from moving from sigmoid to the rectum.

PW2 further explained that specimen labeled high rectal swab was taken in the rectum 9cm from the anus. Counsel suggested that it was impossible that specimen in high rectum because any specimen will lead to mass movement [] and gravity. PW2 did not agree to this suggestion because human bowel was not [] but [] afforded mucosa, so material could still stick there. Not necessary all will come out immediately. Some could be left in the area [] high rectal swab.

I find PW2’s evidence as stated above, given in the cross examination adequately explained the issue raised by Mr. Nair. I found his explanation to be possible. I accept his evidence that he collected P6F from peri anal region, P6H and P6I from high rectal region and P6J from low rectal region of PWI which was subsequently confirmed by PW4 that it contained semens. Hence I find the evidence of PW3 and PW4 who testified based on the location exhibits were collected, there was penal penetration as corroborative evidence at the factum of penetration.

The other crucial evidence to be accepted was further corroboration evidence from DNA evidence from Dr. Seah and Puan Aidora. Dr. Seah testified that she carried out the differential extraction of B7 which was the exhibit P6H the high rectal swab from PW1. The non sperm extract was the single source blood profile which matches the blood sample taken from PW1. The sperm extract was a mixed profile in which the dominant contributor which PW5 had called Male Y. this sperm extract of Male Y was also found in P6I which was another high rectal swab and P6J which was low rectal swab collected from PW1.

Puan Nor Aidora binti Saedon testified that she was given a white toothbrush, Good Morning towel, an empty mineral water bottle, and a strand of hair for analysis. Except for the strands of hair, the DNA profile were derived from the other 3 exhibits, matches each other and from the same origin. PW6 then made a comparison of DNA profile on those items with the DNA profile of Male Y derived by Dr. Seah from the swabs taken from PW1’s anus. PW6 found the DNA profile developed by her matched the DNA profile of Male Y developed by PW5 thus proving that the DNA came from the same source.

The evidence of PW15, PW16, PW17, PW18, PW19 and PW20 collectively showed that the said toothbrush, Good Morning towel, an empty mineral water bottle, and a strand of hair were collected at the cell occupied by the accused. The accused was the last and the only occupant of the cell before the exhibits were collected. When the accused was entering the cell, he brought along a mineral bottle. He was also issued a Good Morning towel, a white toothbrush, a tube of toothpaste and soap. This evidence if accepted that the unknown contributor of semen Male Y found in PW1’s anus came from the accused.

The defence submitted that the evidence from both PW5 and PW6 should be rejected because the evidence given was real with doubt and unexplained scientific details thus make them unreliable. The learned counsel for the defence submitted in short that the reliability of PW5’s evidence was highly questionable for the following reasons:

• She had departed from the standard guidelines to determine drop out. She was selective on what she considered as stutter.
• She failed to make available the record of the DNA’s volume used during the PCR process.
• The samples were contaminated as evidence DNA of Male Y was detected.
• There was element of degradation in the samples.

It was further submitted that the evidence of PW5 should be rejected on the ground that it is unreliable, then Male Y will be as good as non existence, thus make the PW1’s evidence remain uncorroborated.

In dealing with chemist evidence, the Supreme Court in PP v Lam San had said, with regard to the evidence of the chemist, unless the evidence would be so inherently incredible that no reasonable person can belief that it would be true, it should be accepted as prima facie evidence. As long as the evidence is credible, there is no necessity for the chemist to show what he/she did in his laboratory.

Therefore the issue now is whether the evidence of SP5 and SP6 were not credible. It could not be denied that Dr. Seah Lay Hong appeared in court with impeccable credentials. She is a forensic scientist attest to the Chemist

Department of Malaysia. She is 52 years old and currently heading the Serious Crime Unit. She first obtained the Bachelor of Science (Hons) majoring in Chemistry. She went on to obtain Master of Medical Science and she has a

PHD in Forensic DNA. Her main function at her unit is to undertake and supervise the analysis of serious cases like murder, sexual assault and drug trafficking that require a thorough examination. Her curriculum vitae [] to be extensive. Beside that, she also a member of [] Genetic Society and also a member of Malaysian Forensic Science Society. On average, she received 5-20 cases per month and 10-20 exhibits. She was given evidence in the court about 10 times a year and her evidence to the best of her knowledge had been accepted by the court. She had given a lengthy and detail reasons for the examination and analysis that she had conducted as to the conclusion she had arrived. She had conducted the DNA analysis within the latest techniques. With regard to the issue of allele drop out and how she had treated stutter, she was asked in length in cross examination. She answered every question convincingly. She said that all interpretation of mixture is based on their validation study and experience. With regard to T-value, and when drop out was considered, she said it is of no significant in this case [] mathematical approach and not interpretation. She further explains that Jabatan Kimia

Malaysia had adopted the 50RFU equated to T-Value. PW1’s treatment to stutter range by the defence and also PW6 was also explained that JKM has its own guidelines to determine a stutter. The range of stutter established through a validation studies is 15% to 20% of the real []. The threshold to consider a peak is 50 RFU and stutter not be reported at PCR summary, PW5 also explained that peak height doesn’t affect any conclusion and pull out which occurs in electropherogram due to overloading does not affect the reading of the electropherogram as the pull out does not create the falls of [] of peak. The result will still be accurate. Going through the detail explanation of the analysis and examination conducted by PW5 and her impeccable credential as forensic scientist and she also has PHD in Forensic DNA, PW5 is without doubt an expert especially in the area of DNA analysis. There is no reason for this court to exclude her evidence in this court regarding this case.

Same with Puan NorAidora. She is competent in term of her academic and professional qualification and experience. There is no reason to doubt her finding and opinion. With regard to the possibility of contamination and degradation of the samples examined by PW5 as raised by the defence, the testimony of PW5 showed that she had taken into her consideration the possibility of degradation and contamination. She explained that degradation will always happen in DNA examination and analysis but what is important is whether the degradation is so severe which resulted in the entire DNA had been destroyed and therefore no profile could be obtained or developed.

In this case, where the DNA profile could be developed, it means though there might be some slight degradation but it was not substantial enough to destroy the DNA. In this case, PW5 confirmed that despite the possibility of degradation and contamination, the profile obtained from swabs taken from PW1’s anus was clear and unambiguous. This means the degradation if any was not substantial and of no effect to the quality to the profile of the samples.

With regard to the contamination, the evidence of 3 medical doctors who examined and took swabs, clearly shown that all samples collected from PW1 were immediately placed and sterile in air tight container, labeled, dated and signed by both PW3 and PW1. They were sealed and placed in plastic bag before handed over to PW25 to be handed over PW5 for examination, with the sealed still intact. In the absence of the evidence to show otherwise, I found the possibility of contamination of those samples after they were collected from PW1 to be too remote.

As regard to those samples examined and analyze by PW6, a good profile was obtained. This means that even if there was contamination and degradation, it was insufficient to affect the quality of DNA profile. With regard to contamination, PW6 explained that if there was a contamination, one was unable to see all the 18 alleles at the loci D3S158 and all the traces samples which she was analyze. The reagent blank is still blank thus no contamination to the samples.

Another issue raised by the defence was tempering the evidence by IO, when he opened the plastic packet containing samples collected from PW1. Counsels submitted that this was done with sole purpose to temper the swab taken from PW1’s rectum. Regarding this issue, it is important to remember that DNA profile which was collected, Male Y was sperm extract. This profile was found to match the profile of DNA found of items collected from the cell occupied by the accused.

Most importantly, the items collected from the cells handed to the IO on the 17th July 2008. By that time, the samples taken from PW1 was already with PW5 at the Chemistry Department. The said samples were handed to PW5 on 30th June 2008. Therefore there is no way for the IO to used the DNA samples obtained from the cells to temper with the samples collected from PW1, if that what the defence was suggesting. In any event, the DNA profile found from the items in the cells was contact DNA whereas found in the high and low rectal swab was from seminal extract.

As submitted by learned Senior DPP, where was the IO going to get the seminal sample which was subsequently found to match the DNA profile found in the items used by the accused in the cells.

Based on all the above reasons, I found the prosecution through the evidence of PW1 which had been corroborated in material particularly had proved all the facts required to prove all the ingredients of the charge. I find the prima facie case as defined under Section 180 of Criminal Procedure Code had been made out against the accused. Therefore, the accused is called to enter his defence.

KS: Before my learned friend proceed with the witnesses, we have in fact filed a Notis Usul this morning asking for your Lordship to review the ruling that was made yesterday.

YA: Yesterday’s ruling?

KS: Yes. The grounds are set out in the affidavit and in fact I’m told that the file is in your Lordship’s room, probably by now. It is only filed today, but not already there.

YA: Never mind, since you have filed it. But we can proceed with this one. Later on we can deal with whatever application you make.

KS: Our application is very fundamental that these items ought not to go in. If these witnesses are called, the items go in and marked as exhibit.

YA: Okay, marked as exhibit….

KS: You can’t do that unless…

YA: But then later on if I hear you and if I decide in your favour it will be expunged also.

KS: That is not the point. The moment it is marked as exhibit it become public document.

YA: It can be expunged.

KS: That can even be published in the press. You should avoid that.

YA: That is nothing to do with…Sorry, Mr. Karpal. We have to proceed with this. We will deal with your application later.

KS: Sorry is not the right word to use. I think it goes beyond sorry. It’s very important that this application be heard first. Prerequisite, my Lord. Your Lordship should not do something which is inconsistent with your reason. Because if this document go in as exhibit as I kept saying just now, it become public document.

YA: So what?
KS: The prejudice will be there is confusion. Surely your Lordship can see that. Male Y. Tomorrow the papers will say male Y is the accused. Can we allow that? And later your Lordship decides otherwise and said this documents are inadmissible. Harm done. Could we see your Lordship in chambers? I will explain to your Lordship . Let’s not be hasty, my Lord. Hasty judge can be a dangerous judge. Can we see your Lordship in chambers now? It’s very pertinent. Important. Must be done, ought to be done, should be done. Can we see your Lordship in chambers for a while? Just for 5 minutes.

YA: I can’t see you alone.

KS: Of course, with my learned friend.

MY: YA, I’m puzzled. Because with regard to the document become public, evidence has been adduced to that effect and reported in papers. What is not before the court is only the marking “P”. That’s all. With regard to the evidence, they are already in public domain.

KS: No. [].

MY: Public domain, yes. Aidora has given evidence that she compared the…I mean, it was already there. Otherwise…

KS: Could we see your Lordship in chambers? I think it requires more []. My learned friend should be fair.

MY: I have been very fair.

KS: Can we see your Lordship in chambers, my Lord? Just for a while. It is very important. Must be done.

Permohonan 44-65-2011: Application to review the ruling made on 23rd March 2011.

KS: This is an application for your Lordship to review the ruling made yesterday with regard to the review made on the ruling on 8th March 2011.

I come first to the ruling made on 8th March 2011. I appreciate what the ruling was where the evidence relating to the toothbrush, “Good Morning” towel and the mineral bottle and all the evidence relating to it to be excluded from the trial on the ground that the evidence were obtained by unfair methods and unfair means.

YA has reviewed the ruling yesterday in the light of the evidence given by Supt. Jude which is in the general trial where Lordship is of the view that the ruling made on 8th March 2011 has to be reviewed and that this evidence can be admitted as evidence. I don’t know whether your Lordship did not appreciate the two areas in our submission that we have made. All you Lordship say was the arrest which your Lordship found unlawful to be lawful in the light of the evidence by Supt. Jude that there was a valid warrant of arrest.

We submitted on the lock up rules. Was the lock-up rules, specifically on rule 20, complied with? What does rule 20 says? It states this – Masa rehat. A suspect must be kept in the lockup from 6.00 p.m to 6.00 a.m. the next morning and cannot be taken out and so forth. No interrogation can be made. We have the authority to this effect which renders the detention unlawful and horrendous. We cited the case of Dato’ Mokhtar Hashim and Lee Chee Meng.

Fair enough if you found that the arrest was lawful. But the detention which is more important, not the arrest. The detention of Dato’ Seri Anwar Ibrahim remains unlawful the moment he is not put in the lockup after 6.00 p.m. []. Not put in the lock up at all at 6 o’clock. The requirement is after 6.00 p.m. to be in the lock up.

What happened then? He was brought to HKL at 8.30 p.m. but this was between 6.00 p.m and 6.00 a.m. the next morning. And therefore this is a clear case of contravention of rule 20.. [] subject to rule 20 and [] unfair methods and unfair means. Therefore your Lordship with respect disregarded. The ruling by your Lordship is completely does not touch at all upon the lock up rules, rule 20, the detention on 17.07.2008.

We have the authority. The Federal Court decision, Dato’ Mokhtar Hashim. Your Lordship may not be bound by J James Foong in Lee Chee Meng. If you contravene rule 20, it will make the caution statement recorded at that time inadmissible. In fact on that ground alone your Lordship has to be [] but your Lordship did not do so. []

The 2nd area which is as important as the one which we have submitted before. The police personnel in charge of the lock up after DSP Yahya has supplied the toothbrush, the “Good Morning” towel and mineral bottle, [] but they were directed specifically not to touch the item. Why are they directed not to touch the item? It is obvious that the detention of Dato’ Seri Anwar Ibrahim was for query samples for DNA profiling on the toothbrush, “Good Morning” towel and mineral bottle.

We say your Lordship has completely disregarded what is in Goi Ching Ang. What did the highest court in land says? []

“Evidence obtained in an oppressive manner by force or against the wishes of an accused person or by trick or by conduct of which the policy ought to take advantage, would operate unfairly against the accused and should in the discretion of the court be rejected for admission.’

And from the two areas I have submitted earlier, it falls in the [] trick. That is what Federal Court says. Trick or by conduct of which the policy ought to take advantage. We have no benefit from hearing []. Your Lordship should review the ruling that your Lordship has made in the light of the ruling your Lordship have made on 8th March 2011.

It does not matter what’s going on by now. A judge []. your Lordship ought to completely disregarded. [] the oath your Lordship took when appointed as a judge. I urge your Lordship to take time to resign, not to retire from office, but for a while.[].

Under those circumstances, we would submit that your Lordship should once again be cautious in mind that you should review what your Lordship has done yesterday. Your Lordship is not functius officio. []

MY: I agree that until judgment is given your Lordship is not functious officio. But the question is is there any basis of having the benefit now to review the basis claimed by the defence that you have not considered?

Rule 20 is something that all defence counsel will refer to as far as admissibility of caution statement is involved. In Dato’ Mokhtar Hashim, yes. The caution statement is [] because the issue is not whether you have breach the rule or not.. [] and applying this law, rule 20 in our case, it says you must be detained. Just because the law says you must be detained, does not mean you must be put in the lock up.

Yes, they went to the hospital at 8.30 p.m. but nothing was taken from Dato’ Seri Anwar Ibrahim and the lock up between 6.00 p.m. to 6.00 a.m. DSP Jude was in fact cross-examined by En. Karpal whether he knows what happened between that time and he answered Dato’ Seri Anwar Ibrahim was his family member and his counsel after he came back from the hospital. None of the counsel suggested that they have breached the rule at that time because when it is convenient to them it is okay. But now, when it is not okay, they contended that the police breached rule 20. So rule 20 has no obligation.

If YA remember, these items were collected at 11.00 something in the morning on the next day. The instruction not to touch the items was not given before that, but after Dato’ Seri Anwar Ibrahim was released. The instruction was made by DSP Yahya.

In the Notis Usul and the affidavit, it was stated that DSP Jude instructed the police not to touch anything. But actually it was DSP Yahya and I have pointed it out to my learned friend. And the person who instructed Amidon to collect the items from the lock up was Dato’ Koh Chin Wah, OCCI of KL. The instruction came from higher rank. That’s why DSP Jude himself did not give instruction. Dato’ Seri Anwar Ibrahim was placed in the lock up later than 6.00 p.m. Just because he is placed in the lock up after 6.00 p.m. does not make it unlawful. [].

I really see nothing there for your Lordship to review. Rule 20 does not apply because nothing was taken from Dato’ Seri Anwar Ibrahim and the lock up between that time. With regard to collecting the exhibit in the lock up after Dato’ Seri Anwar Ibrahim was released, that is normal. But what important is what transpires in Jude’s mind.

I humbly pray for this application to be dismissed.

KS: The application we made is not with regard to []. What is important is your Lordship consider the two areas. My learned friend accept that rule 20 is mandatory. [] he said it is on the caution statement. The principle is important. That is something done against the law and your Lordship has a discretion to exclude it. It is as simple as that. My lf does not dispute that direction was given to police personnel at the lockup not to touch the items. []. These are the areas that your Lordship does not consider. I don’t think I can go any further than that. That’s all.

YA: Give me 10 minutes. Start at 10.40 a.m.

[10.31 a.m.] Stand down.

[10.40 a.m.]

YA: This is my ruling. After going through the defence’s Notis Usul and affidavit, I see no reason to review the ruling I made yesterday. Application dismissed.

Q: So, Puan Aidora, can you just confirm whether this is the enveloped that you received on 17.07.2008 from DSP jude as well as the content in it which has now marked as P57A.
A: Yes, I identify it.

NB: P57 and P57A identified, YA.

P57 and P57A identified.

Q: Seterusnya Aidora, you also received enveloped marked “D1” now marked as P58. Can you please confirm that this envelope as well as the content of it that you also received on 17.07.2008 from DSP Jude to be examined and analysed?
A: Yes, I confirm.

P58 and P58A identified.

Q: Seterusnya, refer to P59 and P59A. Can you please confirm that this envelope as well as the content of it that you also received on 17.07.2008 from DSP Jude to be examined and analysed?
A: YA, I confirm.

NB: P59 and P59A identified, YA.

P59 and P59A identified.

Q: You did something on this towel, I believe. You found a strand of hair and you have isolate that all and put in an envelope ID60 and the content ID60A. Can you confirm this is the exhibit, Pn. Aidora?
A: YA, I confirm.

NB: May this ID60 and ID60A marked as P60 and P60A?

ID60 marked as P60.
ID60A marked as P60A.

Q: Seterusnya Pn. Aidora, you also received another envelope marked as “D3” now marked as P61 and the content as P61A. Can you confirm this is the exhibit?
A: YA, I confirm.

NB: P61 and P61A identified, YA.

P61 and P61A identified.

Q: You also prepared a chemist report dated 22.07.2008. Can we have ID61 to be shown to the witness? Can you please confirm that this is the report that you have prepared with regard to the examination and analysis that you have conducted on these items?
A: YA, this is the report prepared by me.

NB: YA, can we have this ID62 be marked as P62?

ID62 marked as P62.

Q: And you have also printed out the EPG, electro-pherogram of your analysis which was marked before as ID 63. Is this the EPG of your analysis, Pn. Aidora?
A: YA, I confirm this is the EPG printed pertaining to this case.

YA: (to defence) I’m sure this is not fair to ask you to decide now who you want to call in the event the defence is called. Can we leave it as it is or you want to decide now who you want to call?

KS: We need a short break, YA so that we can decide it straight away.

YA: I will give you some time before I can hear the submission. In the mean time you can go through so masa submission you can let me know siapa nak panggil.

KS: Very well.

YA: So when can I hear the submission?

MY: Saya mencadangkan 2 minggu diberikan kepaada kedua-dua pihak untuk menyediakan hujahan. Jika di akhir 2 minggu itu pihak-pihak ada bundle or written submission to exchange and to be filed in court, then whatever reply to that written submission can be taken during the submission proper on the third week.

YA: (to defence) Is it okay?

KS: I hope we are given 3 weeks instead of 2 weeks, YA. I think we may take some time.

MY: Sama juga, YA. Saya pun minta macam tu tadi.

YA: But I hope the parties can exchange within 2 weeks. How about 18.04.2011? It will be on Monday. But how long would it take to hear the submission?

Satu hari boleh siap ke? Ataupun two days? Kalau tak siap one day we’ll just continue. So that would be 18.04.2011.

YA: At the end of trial within a trial I had ruled the toothbrush, the Good Morning towel and plastic bottle and evidence related to those items especially on the evidence relating to the DNA analysis conducted on those items could not be tendered as evidence. There was no doubt even at that time those evidence were relevant and admissible but I have excluded them on the ground that they were obtained through unfair means.

The decision to exclude those evidence was based on the evidence available at that time especially the evidence tendered during trial within a trial. It was made without the benefit of the evidence from the Investigating

Officer who was not called as witness in the trial within a trial. The evidence tendered in court at that time without the investigating officer tend to support the defence assertion that the accused was illegally arrested and his subsequent detention in the cell was nothing but to deploy designed to collect the DNA samples by trick.

Now in the light of the evidence adduced from the Investigating Officer and the Arresting Officer during the main trial, it is clear that the arrest of the accused are in fact lawful. His subsequent detention in the cell was indeed lawful and for a lawful purpose. Thus, the detention of the accused in the cell could not longer said to be done for the purpose of obtaining DNA evidence from him by trick as alleged by the defence.

In those circumstances, the court has no discretion but to allow those items collected from the cell and all evidence related to those items tendered as evidence. Therefore, I now ruled that those items and all evidence related to those items are admissible and could be tendered as evidence. My earlier ruling regarding this matter are accordingly reversed.

With regard to the application to compel the accused to give DNA sample, the learned DPP relied on Section 73 and Section 165 of the Evidence Act.

Section 73(2) specifically talks about directing any person who write any words or figures for the purpose to enabling the court to compare those words or figures with any word or figures to be written by that person. Section 73 (3) extended it to include finger impression.

After reading this section again and again, I find no amount of judicial creativity to justify extending this clear provision to also include DNA sample. Therefore, the application by the learned DPP to compel the accused to give his

DNA sample has to be rejected on the simple ground that there is no legal provision empowering the court to do so. That’s all.

MY: Much obliged. YA, as a matter of confirmatory I have to recall two witnesses just to tender the exhibits marked before as ID.

YA: But the exhibits can be tendered as P, kan?

MY: Yes, but I don’t want any problem to arise later because we have tendered it but for some reason they are marked as ID. I don’t have the witnesses here, YA. Can we do it tomorrow? I just want to call Aidora and Amidon.

Just to tender. Because today seems to be everything to be okay but I cannot afford any problem to arise later because there might be some challenges to it.

YA: So you cannot proceed with the case today because you don’t have those witnesses?

MY: Yes, I want to call the witnesses. After that I think it will take me about 20 minutes for both witnesses. And then I will close the case. Tomorrow, YA.

YA: Mr. Karpal?

KS: I have to be in the Court of Appeal in the morning. But that’s alright.

PC: My Lord, our apologies. Mr. Karpal, he supposes to submit, and he is outside.

KS: First, my apologies because late.

YA: Proceed.

KS: YA, submissions on behalf of DSAI (review of ruling and application for direction by the court for DSAI to provide samples for DNA profiling.

There is no dispute that the ruling made during the trial within a trial can be reviewed by the court. This has been held in Public Prosecutor v Mustaffa bin Ahmad [1986] 1 MLJ 302 [Tab 1] as far back as 9.1.77 even before R v Watson [1980] 2 AER 293 [Tab 2] decided by the English Court of Appeal (Criminal

Division) on 12.2.80.

In Mustaffa bin Ahmad, Ibrahim J ruled the cautioned statement in that case which was admitted in the TWT was ruled inadmissible when the learned judge, after hearing the evidence as a whole, was not sure about the inducement perpetrated on the accused in that case. However, there was compelling evidence which caused the learned judge to review his ruling, unlike in our case. A 5-man bench of Federal Court upheld his decision on 23.1.78. However, no written judgment was delivered (see Editorial Note at page 303).

The parameters as to the position where a ruling in a TWT can be reviewed in the light of subsequent evidence in the general trial are set out in Watson in the following terms:-

‘Because a judge retains control over the evidence to be submitted to the jury throughout a trial, he is not precluded, by the fact that he has already ruled at a trial within a trial in the jury’s absence that a written statement by the accused is admissible in evidence as being voluntary, from reconsidering that ruling at a later stage of the trial if further evidence emerges which is relevant to the voluntary character of the statement, and from ruling in the light of that evidence that the statement is not admissible.’

In the course of his judgment, Cummins- Bruce LJ had occasion to say at page 295:-

‘It is the duty of the judge to exclude from the jury’s consideration evidence which is inadmissible. In the case of a written statement, made or signed by the accused, the judge must be satisfied that the prosecution have proved that the contested statement was voluntary, before allowing the jury to decide whether to act on it. Experience has shown that where the question of the voluntary character of a statement has been investigated and decided at a trial within a trial. It is only very rare and unusual case that further evidence later emerges which may cause the judge to reconsider the question whether he is still satisfied that the statement was voluntary and admissible. But where there is such further evidence the judge has power to consider the relevance of the admissibility of evidence on which he has already ruled.’

Although jury trials have been abolished in the country since 17.2.95, a judge sitting alone now acts both as judge and jury as aptly set out by the Federal Court in Sia Soon Suan v Public Prosecutor [1966] I MLJ 116 at page 118 [Tab 3] as follows:-

‘Irrespective of whether this court is otherwise convinced in its own mind of the guilt or innocence of an accused, its decision must be based on the evidence adduced and nothing else. This is axiomatic. The directions that we give a jury are no less to be hearkened to by ourselves.’

It is trite that a TWT is held for the purpose of admission of evidence to determine the admissibility of evidence to include in the main trial. It follows that all evidence available by the prosecution to rebut assertions made by an accused must be given in that mini trial. This evidence cannot be withheld for the purpose of a review subsequent to a ruling made by the court. All available evidence has to be investigated and decided at a trial within a trial. It is only in very rare and unusual cases if further evidence later emerges (which must be evidence not available during the TWT) that may cause a judge to review his earlier ruling. The prosecution cannot keep up its sleeve evidence available during the TWT and introduce it after a ruling has been made by court for review. This would be the abuse of process by the prosecution and itself may amount to deception on the court. The accused is constitutionally entitled to a fair trial and fair methods of prosecution and not after thoughts and unscrupulous means to upset a ruling already made by court.

In Tan Too Kia v PP [1980] 2 MLJ 187 [Tab 4], a decision of the Federal Court, an Inspector had specifically been identified at the TWT as one of the persons who had assaulted the accused. The Federal Court held that the inspector ought to have been called by the prosecution in rebuttal in the TWT to contradict the accused. In his judgment, Suffian LP, at page 188, says:-

‘We are of the opinion that this failure by Mr. Karpal Singh was not fatal. The voluntariness of the statement was not in issue when Inspector Lias was giving evidence earlier in the general trial. It came into issue only during the trial within a trial. As the Inspector was specifically identified at the trial within a trial as one of the persons who had assaulted the accused, he should have been called by the prosecution to contradict the accused. It would have been very easy for the prosecution to call the Inspector because he had been identified and was available.’

The TWT was conducted by the court for the purpose of determining whether there was sufficient material for the court to exercise its discretion to exclude the DNA profiling from the Good Morning towel, the toothbrush and the mineral water bottle seized by the police from the lock up at the IPK, KL where

DSAI had been detained overnight from 16.7.08 to 17.7.08.

Although in the TWT, DSAI adverted to the role of Taufik and Supt Jude Perreira, the prosecution elected only to call Taufik in rebuttal in TWT.

Taufik attempted to produce a Photostat copy of the warrant of arrest which was only marked as an ID and, therefore could not be considered as evidence in the TWT. A Photostat copy of a document is not admissible as evidence in a court of law. It was in the TWT that primary evidence of the document ought to have been given if the original record had been lost or destroyed.

‘When documentary evidence is tendered, primary evidence of the said document must be adduced except if it can be shown that the original record had been lost or destroyed. The burden of proving that the record book had been lost or destroyed lies on the party seeking to adduce secondary evidence of the contents of the record book’.

The prosecution cannot, by producing the original warrant of arrest in the main trial, now, cure the infirmity. It is in evidence that 3 copies of the warrant of arrest were in the possession of Jude Perreira. The evidence of the warrant of arrest was available during the TWT.

Even Supt Jude Perreira whose role was adverted to by DSAI during the TWT, chose not to take the stand despite having had the opportunity to have produced the original copy of the warrant of arrest in the TWT.

It was during the TWT that Supt. Jude Perreira should have testified. It would be ridiculous and unacceptable lawfully for the court to accept his evidence in the general trial for the purpose of rebutting DSAI’s evidence in TWT that the DNA profiling from the Good Morning towel, toothbrush and mineral water bottle had been obtained by unfair means and his arrest had been procured unlawfully.

In fact, Jude’s evidence in the general trial confirms that there had been non-compliance with Rule 20 of the lock-up Rules, 1953 in that DSAI, after his arrest on 16.7.08, had not been placed in the lock-up from 6pm to 6am the following day. The provisions of Rule 20 are mandatory. In KPM Khidmat Sdn Bhd v Tey Kim Suie [1994] 2 MLJ 627, the Federal Court had occasion to hold the interrogation ranging into the early hours of the morning of an accused was in breach of Rule 20 of the Lock Up Rules (see also PP v Lee Chee Meng & Anor [1991] I MLJ 226 [Tab 6]).

If this was the position in our case, which it was, then clearly, DSAI’s being taken to the HKL in breach of Rule 20 reflected unfair means and unfair methods being employed by the police to obtain the DNA profiling from the items set out herein before. The position is further compounded by the evidence of Supt. Jude Perreira in the general trial that he did not direct police personnel in charge of the lock up not to touch the said items despite the police personnel in the general trial before the TWT, clearly saying that him had done so.

So the position come to this, Supt. Jude and his evidence on oath in the main trial support the defence case that unfair methods and unfair means had been used by the police to obtain DNA profiling from the items set out herein before.

From the ruling made by the court to exclude the items, it is clear it was based on unfair means and unfair methods employed by the police meaning it was by trick and deception that the police attempted to introduce the DNA evidence.

In any event from the evidence of Supt. Taufik given in the TWT and the general trial, the ground of arrest could not have been given by him in the Segambut as this is, clearly, contradicted by the evidence of SN Nair and DSAI. The question of challenging evidence given in the main trial by Supt Taufek and Jude Perreira does not arise. It was assertion made under oath by DSAI that his arrest was unlawful and unfair methods, unfair means had been used to obtain his DNA profiling in the TWT stood unchallenged by the prosecution by leading lawful evidence in rebuttal of those assertion. In fact, an adverse inference should be drawn by the court against the prosecution for not having done so on the authorities of Dato’ Seri Anwar Ibrahim v Dato’ Seri Dr. Mahathir Mohamad [2010] 3 MLJ 174 at 189 [tab 7], a decision of the Federal Court handed down by Alauddin bin Dato’ Mohd Sheriff PCA which after reviewing all previous authorities on the issue, said:-

‘My respectful view is that the revocation letter by itself to a certain extent that created an impression that the formality of advising the Yang di-Pertua Agong was not done by the first respondent. However looking at the affidavits filed in support of the respondent’s application, there is more than sufficient evidence to show that the formality was done. We have the affidavit evidence of Hj. Jaapar who had affirmed that YDPA had accepted the decision and the advice of the first respondent pertaining to the revocation of the first appellant. The appellant did not contradict the said evidence. It is a well settled principle governing the evaluation of affidavit evidence that where one party makes a positive assertion upon a material issue, the failure of his opponent to materially contradict it is usually treated as an admission by him of the fact so asserted (see Ng Hee Thong & Anor v Public Bank Sdn Bhd [2000] 2 MLJ 29; Alloy Automotive Sdn. Bhd v Perusahaan Ironfield Sdn Bhd [1986] 1 MLJ 382; Overseas Investment Pte. Ltd v Anthony William O’Brien & Anor [1988] 3 MLJ 332). (This principle equally applies to oral evidence given in court like the one in the nature of TWT).

With respect, we agree fully with the findings of the Court of Appeal as mentioned above.’

The submission of the learned DPP that Goi Ching Ang v PP [1999] 1 MLJ 507 [Tab 8] related to a section 27 information only is misconceived. The principle in Goi Ching Ang enunciated by a strong 5 man bench of the Federal Court, after adverting to various authorities in the Commonwealth including Noor Mohamed v R [1949] AC 182, Kuruma Son of Kaniu v R [1955] 1 All ER 236 and R v Sang [1980] AC 402, mentioned at page 526, although not included in the cases referred to at pages 511-511 is set out in absolute terms with regard to discretion of a court to exclude evidence obtained by unfair means and unfair methods as follows at page 508:-

‘There is a vested discretion in a trial judge to exclude evidence which is prejudicial to an accused even though the said evidence may be technically admissibility. Evidence obtained in an oppressive manner by force or against the wishes of an accused person or by trick or by conduct of which the policy ought to take advantage, would operate unfairly against the accused and should in the discretion of the court be rejected for admission.’

This principle is of general application and nowhere in the judgment did the Federal Court say it was restricted only to sec 27 information.

Any attempt to dilute the impact of the principles referred to above is a disservice to the Federal Court.

The attempt by the learned DPP to import English law by virtue of section 5 of the Criminal Procedure Court which reads:-

‘5. Laws of England when applicable.
As regards matters of criminal procedure for which no special provision has been made by this code or by any other law for the time being in force the law relating to criminal procedure for the time being in force in England shall be applied so far as the same shall not conflict or be inconsistent with this Code and can be made auxiliary thereto.’ is misconceived.
What this section imports and implies is where there is a lacuna in procedure, then this section can be availed of, and not where the law relates to evidence. Therefore, section 5 of the CPC cannot import section 62 of the Police and Criminal Evidence Act 1984, which concerns evidence, similar to our Evidence Act 1950.

In PP v Sanassi [1970] 2 MLJ 198 [Tab 9] at 201, Sharma J, with regard to section 5 of the Straits Settlement Criminal Procedure Court (in exact terms with section 5 of the CPC), had this to say:-

‘It is entirely a matter for the legislature to decide whether the procedure of the courts in this country, which is now sovereign and independent, should depend upon a foreign enactment and whether any amendment made to its own laws by a foreign Government should still continue to remain binding on us who have a supreme legislature of our own. I say so with some emphasis because most of our present law graduates are locally qualified and they should not generally be concerned with how the Parliament of England prescribes a procedure granting a right to the accused to make a statement from the dock or how and why such a right is modified or taken away by that Parliament.’

In fact, the Parliament has passed the Deoxyribonucleic Acid (DNA) Identification Act, 2009 [Tab 10] to which Royal assent was given on 19.08.09.

However the Act has yet to be brought into force.

This court cannot through judicial activism, direct DSAI to give samples for DNA profiling. In any event, section 62 of PACE only provides for the police to take intimate samples with safeguards, including consent to be given by the suspect. Section 62 does not empower the court to direct an accused person in an ongoing trial to give samples for DNA purposes.

Section 165 of Evidence Act limits judicial intervention in a trial. Of course, the unprecedented application for YA to direct DSAI to give samples for DNA profiling is unheard of and unprecedented in the Commonwealth and perhaps elsewhere. Judicial activism has its limits.

In Lim Chin Poh v PP [1969] 2 MLJ 159 [Tab 11], the court held:-

‘it is desirable that the district judges and magistrates should bear in mind that the first and most important thing for the administration of the criminal law is that it should appear that the accused is having a fair trial and that he should not be left with any sense of injustice and certainly not on the ground that the trial judge was prejudiced against him. Where the prosecution and the defence are both represented by counsel, as they were in this case, the trial judge should refrain from intervening unless it is absolutely necessary.’

In Teng Boon How v PR [1993] 3 MLJ 553 [Tab 12], the Supreme Court had occasion to with regard to the limitations of the provisions of section 165 of the Evidence Act to hold:-

‘Notwithstanding the wide ambit of s 165 of the Evidence Act 1950, the desirable limits of judicial intervention in the examination and cross-examination of witnesses as set out under the common law of England apply in this country. These limits apply with double force in the case of interrogation by a judge of an accused person, since the nature of examination contemplated by s 165 of the Evidence Act 1950 is not examination or cross-examination of an inquisitorial nature for the purpose of entrapping an accused or of extracting from him damaging admissions upon which to build up a case against him or to supply a gap in the evidence for the prosecution, especially in the case of a capital charge. The failure of a trial judge sitting alone, to direct himself correctly in accordance with these principles must be treated in the same way as a failure to direct a jury correctly.’

The following passage in the judgment of Lord Denning MR in Jones v National Coal Board [1957] 2 All ER 155 [Tab 13] at page 562 in Teng Boon How emphasizing the importance of a judge not descending into the arena and thereby depriving himself of the ability to take a detached view when forming his decision bears repetition:-

‘Yes, he the judge must keep his vision unclouded. It is all very well to paint justice blind, but she does better without a bandage round her eyes.

She should be blind indeed to favor or prejudice, but clear to see which way lies the truth; and the less dust there is the better. Let the advocates one after the other put the weight into the scale – the nicely calculated less or more – but the judge at the end decides which way the balance tilts, be it ever so slightly…so also it is for the advocates, each in his turn, to examine the witnesses, not for the judge to take it on himself lets by so doing he appear to favor one side or the other. And it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, lest by the sequence of his argument be lost…The judges’ part in all this is to hearken to the evidence, only himself asking question of witness when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law, to exclude irrelevancy and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth, and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that: ‘Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal.’

The position with regard to DNA profiling has been lucidly set out by KC Vohrah J (as he then was) in Peter James Binstead v Juvencia Autor Partose

[2000] 2 MLJ 569 [Tab 14] as follows:-

‘There is no general power provided by legislation or through common law for any court in Malaysia to order a person to undergo a test to ascertain paternity. In the case of a DNA test, it is common knowledge that either a blood, a tissue or bone specimen will be taken from the person for testing. If a person refuses to submit himself to such a testing, he is perfectly entitled to do so; a person cannot be subject to hurt within the meaning of sec 323 of the Penal Code for voluntarily causing hurt to the person and a court cannot in the absence of a specific legislative provision, order such person to submit himself to an unlawful act to be committed on his person.’

The learned DPP’s reference to sections 73 and 165 of the Evidence Act [Tab 15] is clearly misplaced. Section 73 refers to comparisons of signature, writing or seal with others admitted or proved whereby the court can direct any person to write any words or figures for the purpose of enabling the court to compare those words or figures so written with any words or figures alleged to have been written by that person. Subsection (3) of section 73 makes subsection (2) applicable to finger impressions. In our case, the learned DPP has presumed the DNA evidence sought to be adduced has been proven, when it has not been.

Section 165 provides for the power of a judge to put questions or order production of document or things. Section 73 and 165 cannot by any stretch of the imagination empower a court to direct an accused to provide samples for DNA profiling! Even the case cited by learned DPP, King-Emperor v Nga Tun Hiang

AIR 1924 Rang 115 [Tab 16], refers to the proviso that the power to take finger impressions under sec 73 of Evidence Act is qualified by the accused privilege against self incrimination.

Even in Goi Ching Ang, the Federal Court adverted to the principle against the right of self incrimination when holding at page 508:-

‘Admitting the s 27 information would infringe the principle of the right against self-incrimination since there was no evidence of s 112(ii), (iii) and (iv) of the Criminal Procedure Code (FMS Cap 6) having been complied with. Since the trial judge had not exercised his discretion to exclude the s 27 information, the appellate court would be at liberty to do so’.

It is submitted that under the circumstances both applications by the prosecutions ought to be dismissed as being a manifest abuse of the process of this honorable court. So we pray for both applications to be dismissed.

Now coming to something which is substantial in court. It is in relation to YA’s caution that whoever commits contempt of court would have to face the music.

YA: That is outside of this submission. It is nothing to do with the application, right?

KS: That is not the point. A ruling was made, YA had cautioned. Various personality including the Prime Minister have committed on this application that Dato’ Seri Anwar Ibrahim ought to give his DNA. It is reference to this application, YA. It is contempt of court. The Prime Minister should be hold up here to show cause why he should not be committed for contempt of court apart from other personalities who are very [] to go against YA’s caution which is given in open court. YA ought to stand on the by the caution YA has given and take action against those who have got against that caution.

YA: Yes DPP, any reply to this application?

MY: Application for contempt?

YA: No. This.

MY: May I just take the last case, Goi Ching Ang. In the submision, I’ve submitted that Goi Ching Ang is relevant on the factual matrix. The principle, yes it doesn’t come up with new law, but on the facts this is in aspect of S.27, information, which have been commented upon in the case of Wan Mohd Azman that in other cases other than confession, there is no necessity for balancing exercise.

With regard to the other cases, Lim Chin Poh v PP [1969] 2 MLJ 159 and Teng Boon How v PR [1993] 3 MLJ 553, again this cases are with regards to situation where the judge cross-examining the witnesses.

If I may first invite your Lordship to the case of Lim Chin Poh v PP [1969] 2 MLJ 159, the complaint in this case is because the judge interrupted so much but at page 162, paragraph F left,

“There is one other matter. Counsel for the appellant criticized the manner in which the learned district judge conducted the trial of the appellant. His complaint was that, by reason of the frequency and nature of the interruptions by the learned trial judge when the appellant was giving evidence, the appellant did not have a fair trial. It was alleged that the trial judge intervened on no less than fifteen occasions; that he cross-examined the appellant; that he made it known that he was displeased with the appellant; and that he was so thoroughly annoyed with the appellant that he gave vent to his feelings by imposing a severe sentence.”

So, it has no application to this case. Your Lordship has not cross-examine anybody yet.

With regard to the other case, Teng Boon How v PR [1993] 3 MLJ 553, if I may first refer your Lordship to page 562, the paragraph before the one referred to by my learned friend in his submission, if I can read paragraph C,

“It was Lord Greene MR who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations. If a judge, said Lord Greene, in Yuill v Yuill, should personally conduct the examination of witnesses, ‘he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict’”

And at page 564, in reference to the case at paragraph B,

“Nevertheless, we were reluctantly driven to the conclusion that the judge did, in this case, descend into the arena and did allow his judgment of the facts to be clouded by the results of his cross-examination of the appellant, the brother, Tan Booy Keng, and the taxi driver, Loh Chin Wah, though we do not doubt that he was actuated by the best of motives.

As for allowing his judgment of the facts to be clouded by the results of his cross-examination, we need no more than refer to the following extracts from his judgment,…”

In both cases, the judge took an active part in cross-examining the witnesses. So I do not think it really applies.

At case no. 14, Peter James Binsted v Juvencia Autor Partosa [2000] 2 MLJ 569,J KC Vohrah’s decision. This is with regards to affidavit evidence. We can read from the headnotes,

“The respondent applied for maintenance in the magistrates’ court under s 3(1) of the Married Women and Children (Maintenance) Act 1950 (‘the Act’). In her supporting affidavit, the respondent claimed that the appellant was her husband and that they had a child from the marriage. The respondent’s lawyer made an oral application to the court to order the appellant, the respondent and child to, inter alia, undergo a deoxyribonuclei acid (‘DNA’) test. The magistrate allowed the application and the appellant appealed against that decision.”

We do not know under which provision of the law the Magistrate is acting. It is a civil case. People take for granted that Evidence Act doesn’t apply to civil case. Normally they do not give any weight or attach any weight to the Evidence Act when they do civil cases. But what the judge said at page 571, slightly below paragraph A…

YA: You mean the Evidence Act doesn’t apply in civil cases?

MY: No. I mean is it is not quoted. People take for granted Evidence Act, somehow it doesn’t apply. Hearsay and all other things in civil trial. I mean it is very relax.

At page 571, slightly below paragraph A,

“At the outset it has to be noted that the Act has no provision to allow any court to make such an order.”

The Act here refers to Married Women and Children (Maintenance) Act 1950. Nobody tells J Vohrah that we have S.165 and maybe can be extended in context of S.73. Nobody says it there.

As far as both cases are concern, all said is different from the context of our case.

With regard to the statement at page 3 of the submission, this is with regard to the review, in the 3rd paragraph where my learned friend reproduces part of the judgment in R v Watson which reads,

“The prosecution cannot keep up its sleeve evidence available during the TWT and introduce it after a ruling has been made by court for review. This would be abuse of process by the prosecution…”

This statement is not backed by any authorities. But if I may remind this honorable court, before submission, after two days searching for the original warrant of arrest, then only we got hold of it. I compared it to the copy with the court and then I made a proper application to recall so that I can tender the warrant of arrest but it was refused by the court even though I cited S. 425 of Criminal Procedure Code and the case of Ramli b. Kechik and Pon Nam, both

Federal Court decision.

With regard to the IO, we didn’t call the IO just because of the voluntariness, to decide on the admissibility. The IO give evidence beyond that. But during the trial within a trial what is obvious is this, the onus is on them to prove but when Dato’ Seri Anwar Ibrahim made the confession orally that he was informed before the start of the recording that there was a report alleging that he sodomised certain someone at certain time and address, I thought there it goes. There couldn’t have [] concession by Dato’ Seri Anwar Ibrahim and less than certain denial with regard to Taufik’s assertion that he had read, explained and obtained the signature of Dato’ Seri Anwar Ibrahim with regard to the warrant of arrest, I do not think then it would be important for me to call Jude.

But this paragraph at page 3, can I now compare with what the judge in R v Watson says at page 2 of the submission,

“It is the duty of the judge to exclude from the jury’s consideration evidence which is inadmissible in the case of a written statement, made or signed by the accused, the judge must be satisfied that the prosecution have proved that the contested statement was voluntary, before allowing the jury to decide whether to act on it. Experience has shown that where the question of the voluntary character of a statement has been investigated and decided at a trial within a trial. It is only in very rare and unusual cases that further evidence later emerges which may cause the judge to reconsider the question whether he is still satisfied that the statement was voluntary and admissible. But where there is such further evidence the judge has power to consider the relevance of the admissibility of evidence on which he has already ruled”.

Nothing to support what En. Karpal Singh said. What they are saying is very rare further evidence later emerges. But further evidence did emerge and if it emerges, then the court should consider. If your Lordship remembers, when I started my submission the other day I said the review was based on two, (1)

because the emergence of further evidence; (2) that we perceived that your Lordship could have erred in the application of the law. That ‘s why we cited the case of PP v Ng Lai Huat & Ors [110] 2 MLJ 427which say there the judge on its own upon reviewing his ruling held that he could make a mistake there. That’s all.

All in all S.73, true, it refers to handwriting and finger impression. But what I said the last time was that all it talks is about identification. And DNA also talks about identification and were said to be in the book that we cited before your Lordship to be the closest to finger print. The status of the DNA test is closest to finger pints. That’s why we said why not we extend this, because when S73 was enacted there is no DNA test. The law is a living thing, it should develop.

S.165 is a section of general application. It does not have any conditions before it can be invoked. The only consideration is that it is invoke so justice can be done. It is invoked so the court can obtain the proper truth. And it is not we presume that certain things have been proved.

What the literature said is this, what is admitted or proved under S. 73 was the DNA that we have adduced is that recovered from the anus, and then we need to compare it with someone which we recover in the cell. But bearing in mind now that that evidence with regards to whatever collected from the cell was held to be inadmissible, that’s the reason why we invited the court to exercise your discretion or powers under S.73 and S.165 individually or read together to order Dato’ Seri Anwar Ibrahim to make available the specimen.

So on this thing, [] talks about you cannot ask an accused person to be a witness in his own trial. I believe the literature had all stated it is true. But there is nothing stopping the court from taking it from him if he doesn’t want to surrender. What he cannot do is to produce himself if he doesn’t want to.

And the court cannot force him to produce it but the court can order for it to be taken from him.

That’s all, YA.

KS: Just one point, YA. The Evidence Act has not been amended to include the court of law directing an accused person to provide his DNA profiling. My learned friend is asking your Lordship to do what the legislature should do and if such there is an amendment to the Evidence Act []. This court has no power. J KC Vohrah has made it very clear. I am made to understand from my learned friend’s submission the Evidence Act does not apply in civil case…

YA: He said apply, but some other people think it didn’t apply. As far as he is concern, it applies. That is what I understand from his submission.

KS: Alright. If it applies clearly what J Vohrah had said…I don’t think we should read again. It is very clear.

“There is no general power provided by the legislation or through common law for any court in Malaysia to order a person to undergo a test to ascertain the paternity. The case of a DNA test, it is common knowledge that either a blood, tissue or bone specimen will be taken from the person for testing…”

And if it is done without his consent then it will be an offence under S.323 of the Penal Code. We say nothing has [] in the main trial. If anything had emerges, it strengthens…

YA: You are submitting. Actually it is supposed to be at the end …

KS: []. Just to impress upon your Lordship.

YA: It is already in your submission.

KS: Very well if your Lordship got it there. []

YA: It is obvious I cannot make my decision today. I need time to go through. By Wednesday? Give me one or two days to go through.

KS: With regard to what I said just now about Prime Minister committing obvious contempt of your Lordship ruling. Your lordship might want to make a ruling on that.

YA: If you really think the way you do, you can file the application in the management unit and they will handle it. Now we have the management unit to handle all file for the cases in all courts. That’s all.

SN: My Lord, I’ve been informed by Mr. Karpal Singh at about 11 p.m. yesterday, that his youngest brother who was in Penang High Court passed away, and he went there yesterday itself. I was also informed by Mr. Karpal that there is ceremony in the community. And being the eldest brother, he has to conduct personally and he won’t be able to make it to court at least on Monday.

YA: Why can’t be tomorrow?

SN: There will be a lot of certain things that he must conduct as the eldest brother, and it is very religious and customary. It is his responsibility

YA. So as a result of which, I wish that this matter will be postpone to at least Monday.

YA: Datuk Yusof?

MY: YA, it is very difficult for me to object, and that considering that Encik Karpal is not that mobile, I believe that I have no objection to this application because considering the religious and ritual that they have to go through.

SN: There will be put the ashes in the sea and I believe, there are full of ceremony event take place in this 4, 5 days, YA, because of the ritual. As a result of this, I think it is unfortunate that the timing is caught with the court case and all. We hope Your Lordship will consider Mr. Karpal’s situation.

About...

It now boils down to one word – consensual. Although short, today’s trial proceedings nevertheless produced enough interest and detail to last a lifetime, or at least a political career.

The issue at hand was the difference in the charge sheet and Saiful’s testimony. The charge sheet accused Anwar of consensual sex against the order of nature, whereas his defense team argued that Saiful’s testimony spoke of non-consensual sex against the order of nature.

Their argument was so persuasive that the judge adjourned the hearing to determine whether or not to impeach the testimony of AI’s accuser.

Karpal and gang were over the moon and AI was laughing uproariously. One wonders why though? Was AI laughing too soon?

The fact is that “sex against the order of nature” is prominent in both the charge sheet and the accuser’s statements. So is the prosecution merely saying that the sex was consensual or not non-consensual as claimed by Saiful? If this is so, how does it help disprove that Anwar indulges in “sex against the order of nature”?

From sodomy to homosexuality…was Anwar laughing too soon? It’s all in the transcript. The wordings of the charge sheet and the statements are there and so are Karpal’s arguments in full. You decide – was it consensual or non-consensual.

Because obviously, you no longer have to decide if “sex against the order of nature” really took place or not.

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